Baumann v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

KRISTOPHER BAUMANN,

Plaintiff,

v. Civil Action No. 09-1189 (CKK)
DISTRICT OF COLUMBIA, et al.,

Defendants.

MEMORANDUM OPINION
(October 28, 2013)

Plaintiff Kristopher Baumann, Chairman of the District of Columbia Fraternal Order of

Police (“FOP”) and an Officer with the District of Columbia Metropolitan Police Department

(“MPD”), brings this action against the District of Columbia, Chief of Police Cathy L. Lanier,

Assistant Chief Patrick Burke, Assistant Chief Michael Anzallo, Commander Christopher

Lojacono, and Lieutenant Dean Welch, each in their individual and official capacities

(collectively, “Defendants”). Presently before the Court is the Plaintiff’s [99] Motion for

Summary Judgment and the Defendants’ [100] Cross-Motion for Summary Judgment. The

Court previously granted Summary Judgment to the Defendants on all but one of the Plaintiff’s

claims. The claim remaining before the Court arises out of MPD’s discipline of the Plaintiff for

releasing to the media without prior authorization a recording of audio transmissions (“the

recording”) between members of MPD’s Emergency Response Team during a barricade

situation. The Plaintiff alleges that Parts VI-C-1 & 7 of the MPD’s media policy – MPD General

Order 204.01 – as applied to the Plaintiff in this case, constitute an unlawful prior restraint of
speech in violation of the First Amendment. Upon consideration of the pleadings,1 the relevant

legal authorities, and the summary judgment record, the Court finds that Parts VI-C-1 & 7 of

MPD General Order 204.01 are not unconstitutional prior restraints as applied to the Plaintiff.

Accordingly, the Plaintiff’s motion is DENIED and the Defendants’ motion is GRANTED.

I. BACKGROUND

A. Factual Background

The parties generally agree as to events at issue.2 At all times relevant to the issue

remaining before the Court, the Plaintiff was assigned full-time to act as Chairman of the FOP,

the D.C. police union, pursuant to Article 9 of the Collective Bargaining Agreement between the

FOP and MPD. See Pl.’s Stmt. ¶ 10.

On Saturday May 30, 2009, the MPD Emergency Response Team (“ERT”) responded to

an incident in which a suspect barricaded himself inside a residence. Pl.’s Stmt. ¶ 1. During the

standoff, the following radio exchange, excerpted in relevant part, took place between members

of the ERT:

08:31: Command to Alpha One, be advised I’m being ordered to give you
the go to deploy gas. Copy?

08:49: Alpha One to ERT Two, if you deploy that gas and we are not
prepared for that, we are not prepared to [inaudible] just yet, please
standby for just five more minutes.

09:00: [ERT Two] Copy, I just need communication from you because
I’m getting, ah, issues down here. I just need you to keep me
informed so I can inform them because, I’m getting - pressured.

1
Pl.’s Mot. for Summ. J, ECF No. [99]; Defs.’ Mot. for Summ. J., ECF No. [100]; Def.’s Opp’n,
ECF No. [102]; Pl.’s Opp’n, ECF No. [101]; Pl.’s Reply, ECF No. [104]; Defs.’ Reply, ECF No. [105].
2
The Court shall cite only to the Plaintiff’s Statement of Material Facts (“Pl.’s Stmt.”) unless a
statement is contradicted by the Defendant, in which case the Court may cite to the Defendant’s Response
to the Statement of Material Facts (“Defs.’ Resp. Stmt.”), or directly to the record where appropriate.

2
 09:13: [Alpha One] I understand ERT Two, ‘cause I’m trying to put a
couple of things in place here. If you can give me a couple of
minutes, I’ll be happy to brief you.

***

09:40: Alpha One to ERT Two, would you let command know that we
have been in contact with him again, and if they will please just
give us a couple of minutes, I’m gonna try to resolve this . . .

09:50: [ERT Two] . . . I’ll advise.

***

10:17: [Delta One replies to Charlie One] . . . also can you advise ERT
One, Two, the Command and the Chief they’re in a, ah, bad
situation. I can see ‘em from the front door here. So, if anything
happens, they in the line of fire.

10:37: [Charlie One] I’ll tell them to move out the way . . .

Pl.’s Ex. 26 (10/1/2010 PERB Hearing Examiner’s Report & Recomm.) at 10, ECF No. [89].

The incident was resolved shortly thereafter without deploying tear gas. Id.

The following Monday, Officer Wendell Cunningham – a member of the ERT and Vice

Chairman of the FOP – contacted the Plaintiff to discuss concerns raised regarding the incident.

See Pl.’s Ex. 1 (PERB Tr.) at 161-62. Specifically, ERT members voiced safety concerns as a

result of “someone outside of ERT interfering with a barricade scene.” See Pl.’s Stmt. ¶ 3; Pl.’s

Ex. 1 (PERB Tr.) at 162.

The Plaintiff also received several calls from the media regarding the barricade. Pl.’s

Stmt. ¶ 5; Pl.’s Ex. 2 (PERB Tr.) at 1471-72. On June 2, 2009, the Plaintiff was contacted by the

media and advised that an MPD official had stated that tear gas had been ordered at the

barricade, but that another MPD official had denied that there was an order to deploy tear gas.

Pl.’s Stmt. ¶ 6; Pl.’s Ex. 3 (Baumann Dep. Tr.) at 137. The next day, at the Plaintiff’s

instruction, Officer Cunningham requested a copy of the transmission “over the ERT channel”

3
during the incident for purposes of “incident review.” Pl.’s Stmt. ¶ 7; Pl.s’ Ex. 3 (Baumann Dep.

Tr.) at 138. MPD released a copy of the transmission to Officer Cunningham on June 5, 2009, at

which time he signed an acknowledgment that “[i]t is understood[,] the following recordings are

for internal investigation only[,] there are no public requests for any of these incidents and the

recordings will not be released to the public without prior, written approval from the Office of

Unified Communications.” Pl.s’ Ex. 8 (Final Investigation Report) at 23. That same day, the

Plaintiff listened to the MPD radio transmissions during the incident and released a portion of the

recording to the media. Pl.’s Stmt. ¶ 8.

On October 9, 2009, the Plaintiff was served with a Final Investigation Report and Notice

of Proposed Adverse Action. See Pl.’s Ex. 8 (Final Investigation Report) and 9 (Notice of

Proposed Adverse Action). The Final Investigation Report charged the Plaintiff with misconduct

for releasing audio transmissions to the media “without receiving proper authorization from the

Metropolitan Police Department and the Director of the Office of Unified Communication prior

to dissemination.” Pl.’s Ex. 8 (Final Investigation Report) at 4. The Report alleged that the

Plaintiff provided the information to the media “as a means to discredit Officials of the

Department, and discredit the Department as a whole.” Id. at 5. On December 20, 2009, MPD

issued a Final Notice of Adverse Action, citing the Defendant for violating MPD General Order

204.01, Parts VI-C-1 & 7 by releasing the audio transmissions to the media without “the prior

written approval from the Office of Unified Communications” or MPD. Pl.’s Ex. 10 (Final

Notice of Adverse Action) ¶ 3. MPD General Order 204.01, Parts VI-C-1 & 7 (“the General

Order”) provide that “[c]onfidential information that may jeopardize the successful conclusion of

an investigation” cannot be released to the public, and “[a]ll documents not listed as releasable

shall be closed to public inspection.” See Pl.’s Ex. 12 (MPD General Order 204.01).

4
 The Plaintiff appealed the adverse action. On February 5, 2010, Chief of Police Cathy L.

Lanier denied the Plaintiff’s appeal. See Pl.’s Ex. 11 (Chief Lanier Letter denying appeal) at 7.

In her letter denying the appeal, Chief Lanier noted that the recording related to two separate

ongoing criminal investigations concerning the May 30, 2009 barricade and constituted “secure

tactical communications by members of the [ERT].” Id. at 4.

In the testimony Chief Lanier gave to the Public Employee Relations Board on February

3, 2010, Chief Lanier indicated that she did not consider it harmful for legitimate safety concerns

to be brought to the attention of the public by the D.C. police union. Pl.’s Ex. 2 (PERB Tr.) at

1314.

B. Procedural History

The Plaintiff filed his initial Complaint accompanied by a motion for preliminary

injunction with this Court on June 29, 2009. Compl., ECF No. [1], Mot. for Prelim. Inj., ECF

No. [4]. The Court denied Plaintiff’s request for preliminary injunctive relief on July 11, 2009.

7/11/2009 Order & Mem. Opin., ECF Nos. [12, 13].

The Defendants filed a Motion for Summary Judgment requesting judgment in their favor

on all of the Plaintiff’s pending claims. Mot. for Summ. J., ECF No. [87]. On March 27, 2013,

the Court granted summary judgment in the Defendants’ favor as to the Plaintiff’s Whistleblower

Protection Act and First Amendment retaliation claims. See Baumann v. District of Columbia,

933 F. Supp. 2d 19 (D.D.C. 2013). The Court, however, denied summary judgment on the

Plaintiff’s claim that the General Order is an unlawful prior restraint because neither party

employed the balancing test set forth in Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968) and

United States v. Nat’l Treasury Employees Union (“NTEU”), 513 U.S. 454, 465-66, 468 (1995)

for analyzing the constitutionality of “restraints on the speech of government employees on

5
matters of public concern.” Id. at 41-42. Consequently, the Court requested further briefing on

this claim.

C. Present Cross-Motions for Summary Judgment

The parties filed cross-motions for summary judgment on the remaining claim that the

General Order is an unlawful prior restraint in violation of the First Amendment. In its

supplemental briefing before the Court, the Plaintiff argues that since he released the recording

to the media in his capacity as lead union representative for the FOP, he was speaking as a

citizen about a matter of public concern and, accordingly, any restriction on his speech must be

analyzed under the balancing test set forth in Pickering and NTEU. In applying that test, the

Plaintiff contends that MPD officers’ and the public’s interest in officers being able to speak

about important matters ailing the police department far outweighs the government’s speculative

concerns about confidentiality and agency efficiency.

The Defendants argue that the General Order only reaches speech made by sworn or

civilian MPD employees in their professional capacity, and is thus speech not protected by the

Pickering/NTEU balancing test. The Defendants further argue that even if the Court finds that

the restraints on the Plaintiff’s speech must be analyzed under Pickering/NTEU, the General

Order is narrowly tailored to protect the MPD’s interest in efficient law enforcement and does

not significantly impair the interest of its officers in the free dissemination of their personal

views.

The Court agrees with the Plaintiff that in transmitting the recording to the media while

employed as a full-time union representative the Plaintiff spoke as a citizen on an issue of public

concern and any restriction on his speech must be analyzed under the Pickering/NTEU balancing

test. However, the Court disagrees that the Pickering/NTEU balancing test requires judgment in

6
the Plaintiff’s favor and, accordingly, upholds the constitutionality of the General Order as

applied to the Plaintiff.

II. LEGAL STANDARD

“The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a).

A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by:

(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials); or

(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.

Fed. R. Civ. P. 56(c)(1). “If a party fails to properly support an assertion of fact or fails to

properly address another party’s assertion of fact as required by Rule 56(c), the court may . . .

consider the fact undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e). When

considering a motion for summary judgment, the court may not make credibility determinations

or weigh the evidence; the evidence must be analyzed in the light most favorable to the

nonmoving party, with all justifiable inferences drawn in his favor. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986). “If material facts are at issue, or, though undisputed, are

susceptible to divergent inferences, summary judgment is not available.” Moore v. Hartman,

571 F.3d 62, 66 (D.C. Cir. 2009) (citation omitted).

The mere existence of a factual dispute, by itself, is insufficient to bar summary

judgment. See Liberty Lobby, 477 U.S. at 248. “Only disputes over facts that might affect the

7
outcome of the suit under the governing law will properly preclude the entry of summary

judgment.” Id. For a dispute about a material fact to be “genuine,” there must be sufficient

admissible evidence that a reasonable trier of fact could find for the nonmoving party. Id. The

Court must determine “whether the evidence presents a sufficient disagreement to require

submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”

Id. at 251-52. “If the evidence is merely colorable, or is not sufficiently probative, summary

judgment may be granted.” Id. at 249-50 (internal citations omitted). The adverse party must

“do more than simply show that there is some metaphysical doubt as to the material facts.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Conclusory

assertions offered without any factual basis in the record cannot create a genuine dispute. See

Ass’n of Flight Attendants-CWA v. U.S. Dep’t of Transp., 564 F.3d 462, 465-66 (D.C. Cir. 2009).

III. DISCUSSION

I. Applicability of Pickering/NTEU Balancing Test

a. Whether the Plaintiff released the recording in his capacity as a citizen

The Plaintiff, in releasing the recording to the media, engaged in expressive conduct, or

“speech,” under the First Amendment. See Texas v. Johnson, 491 U.S. 397, 404 (1989) ("The

First Amendment literally forbids the abridgment only of 'speech,' but we have long recognized

that its protection does not end at the spoken or written word."); United States v. Jin-Woo Kim,

808 F. Supp. 2d 44, 56 (D.D.C. 2011) (“The Supreme Court, however, has made clear that the

First Amendment protects expressive conduct whether it is oral, written, or symbolic. There is

no authority for Defendant's proposition that the First Amendment protects his ability to orally

disclose the contents of a classified document but not his transmission of that document in

writing.” (internal citations omitted)); Mt. Healthy City School Dist. Bd. Of Educ. v. Doyle, 429

8
U.S. 274, 284 (1977) (finding that a teacher’s release of a school memorandum to the media was

a communication protected by the First Amendment); Boehner v. McDermott, 484 F.3d 573, 578

(D.C. Cir. 2007) (analyzing whether Representative McDermott’s disclosure to the media of a

recording of a third-party conversation was protected by the First Amendment without

questioning that the disclosure constituted speech). “Public employees do not surrender all their

First Amendment rights by reason of their employment. Rather, the First Amendment protects a

public employee’s right, in certain circumstances, to speak as a citizen addressing matters of

public concern.” Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). But because “the government,

federal or state, [also] has a significant interest, ‘as an employer in regulating the speech of its

employees’ in order to perform its public services effectively,” American Postal Workers Union

v. U.S. Postal Services, 830 F.2d 294, 300 (D.C. Cir. 1987), restraints on the speech of

government employees speaking as citizens on matters of public concern are governed by a

balancing test:

[Restraints] are permissible where the government interest in promoting the
efficiency of the public services it performs through its employees outweighs the
interests of prospective speakers and their audiences in free dissemination of the
speakers’ views.

Weaver v. U.S. Information Agency, 87 F.3d 1429, 1439 (D.C. Cir. 1996) (describing the test set

forth in NTEU, 513 U.S. at 466, and Pickering, 391 U.S. at 568). By contrast, “the First

Amendment places no restrictions on the government’s right to punish employees for speech

made ‘pursuant to their official duties.’” Thompson v. District of Columbia, 530 F.3d 914, 916

(D.C. Cir. 2008) (quoting Garcetti, 547 U.S. at 421). Accordingly, a threshold question for

a public employee’s First Amendment claim is “whether the employee spoke as a citizen on a

matter of public concern.” Garcetti, 547 U.S. at 418 (emphasis added).

While the parties advocate opposite legal conclusions, they have no evidentiary
9
disagreements as to this threshold question, so the Court can answer the question as to the

capacity in which the Plaintiff spoke as a matter of law. The undisputed facts show that the

Plaintiff, although an MPD officer, was assigned full-time to act as Chairman of the FOP, the

D.C. police union, pursuant to the Collective Bargaining Agreement between the FOP and the

MPD. At the time the Plaintiff made the disclosure of the recording to the media, he was serving

in his capacity as a full-time union leader. Courts have recognized that when a public employee

is acting in his capacity as a union leader, his speech is protected by the First Amendment. See,

e.g., Fuerst v. Clarke, 454 F.3d 770, 774 (7th Cir. 2006) (“Because Fuerst’s comments that

precipitated the adverse action taken against him were made in his capacity as a union

representative, rather than in the course of his employment as a deputy sheriff . . .[,] the Supreme

Court’s recent decision in Garcetti v. Ceballos is inapposite.” (internal citation omitted)); see

also Dist. Council 20 v. District of Columbia, 150 F. Supp. 2d 136, 143 (D.D.C. 2001) (“[S]peech

in the context of union activity will seldom be personal; most often it will be political speech.”

(quoting Boddie v. City of Columbus, 989 F.2d 745, 750 (5th Cir. 1993))).

The Defendants argue that, although the Plaintiff was a union leader, in releasing the

recording to the media he spoke in his official capacity as an MPD officer because his speech

“owe[d] its existence to [an MPD] employee’s professional responsibilities,” Def.’s Mot. for

Summ. J. at 1, i.e., the “Plaintiff would not have had this type of access [to acquire the recording]

absent his employment relationship with MPD,” Def.’s Opp’n to Pl.’s Mot. for Summ. J. at 3.

This argument, however, misinterprets Garcetti and the thrust of Supreme Court case law on

government employee speech. “Garcetti carves out [from First Amendment protection] speech

made pursuant to an employee’s official duties – not speech ‘related to his official duties’ or that

‘concern[s] special knowledge gained through his employment.’” Hawkins v. District of

10
Columbia, 923 F. Supp. 2d 128, 139 (D.D.C. 2013) (emphasis in original). Indeed, in its cases

addressing restraints on government employee speech, the Supreme Court has repeatedly

recognized the significant importance of “promoting the public’s interest in receiving the well-

informed views of government employees engaging in civic discussion” about matters related to

their employment. Garcetti, 547 U.S. at 419 (discussing Pickering and its progeny).

Accordingly, the Court concludes that the Plaintiff spoke to the media as a citizen, not as an

MPD employee.

b. Whether the release of the recording was a matter of public concern

In addition, the Plaintiff’s speech – releasing a recording of a radio transmission that revealed

security risks to the public and MPD officers due to the MPD’s handling of barricade situations –

related to a matter of public concern. See Tao v. Freeh, 27 F.3d 635, 640 (D.C. Cir. 1994) (“a

matter of public concern . . . involves information that enables ‘members of society to make

informed decisions about the operation of their government.’” (quoting McKinley v. City of Eloy,

705 F.2d 1110, 1114 (9th Cir. 1983))); O’Donnell v. Barry, 143 F.3d 1126, 1133-34 (D.C. Cir.

1998) (“important issues of Police Department policy” are matters of public concern); Connick v.

Myers, 461 U.S. 138, 146 (1983) (describing generally that matters of public concern relate “to

any matter of political, social, or other concern to the community . . .”).

Accordingly, as the Court finds that the Plaintiff was speaking as a citizen on a matter of

public concern, the Court shall evaluate the constitutionality of the General Order as applied to

the Plaintiff by balancing the “interests of the employee . . . in commenting upon matters of

public concern and the interest of the State, as an employer, in promoting the efficiency of the

public services it performs through its employees.” NTEU, 513 U.S. at 465-66 (quoting

Pickering, 391 U.S. at 568) (internal quotation marks omitted). As the alleged prior restraint is

11
“accomplished through a generally applicable statute or regulation, as opposed to a particularized

disciplinary action, [the Court] must also make sure that the regulation’s sweep is ‘reasonably

necessary to protect the efficiency of the public service.’” Weaver, 87 F.3d at 1439 (quoting

NTEU, 513 U.S. at 474). The Court notes at the outset that the “government bears the burden of

justifying its [restraint on speech]. NTEU, 513 U.S. at 466 (citing Rankin v. McPherson, 483

U.S. 378, 388 (1987)). Moreover, “the government’s burden is greater with respect to [a]

statutory restriction on expression than with respect to an isolated disciplinary action. The

government must show that the interests of both potential audiences and a vast group of present

and future employees in a broad range of present and future expression are outweighed by that

expression’s ‘necessary impact on the actual operation’ of the Government.” Id. at 468.

II. The Plaintiff’s First Amendment Interests

As a government employee, and specifically a police officer, the Plaintiff and the public have

a strong interest in the Plaintiff’s ability to comment on matters of public concern. The Supreme

Court has repeatedly recognized that “government employees are often in the best position to

know what ails the agencies for which they work” and thus “public debate may gain much from

their informed opinions.” Waters v. Churchill, 511 U.S. 661, 674 (1994) (citing Pickering, 391

U.S. at 572). In turn, the District of Columbia Circuit has deemed “important issues of Police

Department policy” to be clear matters of public concern. O’Donnell, 143 F.3d 1133-34; see

also LeFande v. District of Columbia, 613 F.3d 1155, 1160 (D.C. Cir. 2010) (MPD regulation

empowering the Chief of Police to fire Reserve Corps members without process was a matter of

public concern). Here, the Plaintiff wanted to speak about safety concerns to the public and the

police force due to the MPD’s management of barricade situations. Given the special knowledge

the Plaintiff has as a police officer and the important police department policy on which he

12
wanted to comment, the Plaintiff and his potential audiences have a strong interest in the

Plaintiff’s ability to speak on the present matter.

While the Plaintiff’s First Amendment interest in opining about police department policy and

procedures is strong, his interest is not significantly burdened by the General Order. The parts of

the General Order at issue prohibit the release to the public of a defined and narrow set of

protected information; specifically, confidential information that may jeopardize the successful

conclusion of an investigation, and MPD documents other than those listed as releasable to the

public in the broad categories enumerated in Part VI-B of General Order 204.01.3 Importantly,

neither of these categories prevents the Plaintiff or any other officer from offering his or her

personal views about MPD policy generally or the handling of the May 30, 2009, barricade

situation. Cf. Harman v. City of New York, 140 F.3d 111, 119 (2nd Cir. 1998) (striking down

regulation prohibiting employees of child welfare agency from speaking to the media without

first obtaining permission from the media department in part because it covered employee speech

on non-confidential agency policies and activities and “interefer[d] with employees’ ability to

communicate their views to the media”). Indeed, the General Order does not prevent the

Plaintiff from opining to the media that after reviewing the recording he thought the MPD did

not follow the proper procedures in handling the barricade situation. Part VI-F of the General
3
General Order 204.01, Part VI-B lists the following as “Information that may be released to the
public”:
1. Factual information concerning an individual involved in an incident, such as the complainant’s
name and address, unless prohibited by this General Order.
2. Circumstances surrounding an incident, such as time and place, possession and use of weapons,
resistance, pursuit, identity of the arresting officers, length of investigation, and a general
description of items seized.
3. Information that may assist in an investigation, such as lookouts for persons or vehicles, or
composites.
4. Special interest notices outlining Department initiatives, educational information, grants obtained
or public safety announcements.
5. General complaint files, automated arrest printouts, traffic accident reports and reports of
missing, lost or stolen property shall be open to public inspection as mandated by the D.C. Code.
13
Order, which sets guidelines for MPD “members participating in an interview to express

personal views,” demonstrates that an officer’s liberty to express his or her personal views is

assumed throughout the General Order.4

Under the General Order, officers are only limited from releasing confidential information,

and only if it “may jeopardize the successful conclusion of an investigation,” and MPD

documents – and only documents – that do not fall into one of the broad categories of

information that the General Order states may be released to the public. Moreover, Part VI-C-

1’s restriction on the release of information is time-limited, extending only through the

“conclusion of an investigation.” Once an investigation is complete, confidential information

pertaining to that investigation, such as the information contained in the recording at issue, is no

longer restricted by Part VI-C-1 and is presumably a “releasable” document in so far as it is

information regarding “circumstances surrounding an incident.” See MPD General Order

204.01, Part VI-B-2. In the present case, the General Order simply limited the Plaintiff in

releasing the recording itself during two ongoing criminal investigations, not the expression of

his personal views about the matter. Chief Lanier’s testimony before the Public Employee

Relations Board indicating that she does not believe it is harmful for the D.C. police union to

bring safety concerns to the attention of the public supports this narrow interpretation of the

General Order’s restriction on speech.

This limited burden on the Plaintiff’s First Amendment interests is far from the “sweeping,”

“wholesale deterrent to a broad category of expression” involved in cases like Harman, 140 F.3d

at 116 and NTEU, 513 U.S. at 480 (striking down ban prohibiting federal employees from

4
With the exception of “any opinion as to guilt or innocence of the accused or as to the merits of the
case,” which an MPD officer cannot release to the public. MPD General Order 204.01, Part VI-C-3.
Stating such an opinion would have a clear negative impact on the ability of the MPD to impartially
investigate a case and the public and accused’s confidence in the MPD.
14
accepting honoraria for making speeches or writing articles on any subject) on which the

Plaintiff relies. NTEU, 513 U.S. at 467. The burden placed on speech by the General Order is

more closely akin to the regulation upheld in Weaver, 87 F.3d at 1435, requiring prepublication

review of all materials “which may reasonably be interpreted as relating to the current

responsibilities, programs, or operations of any employee’s agency or to current U.S. Foreign

policies, or which reasonably may be expected to affect the foreign relations of the United States

. . . .” While the Plaintiff argues that Weaver is distinguishable since it involved only a

requirement of prepublication review and not the complete prohibition of speech at issue here,

the General Order is far more limited in the type of speech it covers: confidential information

jeopardizing an ongoing investigation and non-public MPD documents. Furthermore, in the

instance case, the MPD restricted the release of the recording only after conducting a

prepublication review in which it determined that the confidential content of the recording made

it appropriate for internal investigation only. Moreover, unlike the regulations at issue in NTEU

or even Weaver, the General Order’s restrictions are limited to speech which has a strong

“nexus” with the employee’s job. See NTEU, 513 U.S. at 474. The speech restricted by the

General Order is not simply related to the Plaintiff’s employment, it is speech that only exists

because of the Plaintiff’s employment. Thus the Plaintiff’s interest in the restricted speech is

weaker and the government’s interest stronger. Cf. Navab-Safavi v. Broadcasting Bd. of

Governors, 650 F. Supp. 2d 40, 57 (D.D.C. 2009) (“the less [a plaintiff’s] speech has to do with

the office, the less justification the office is likely to have to regulate it.” (citing Eberhardt v.

O’Malley, 17 F.3d 1023, 1027 (7th Cir. 1994))).

III. The Government’s Interests

The Defendants justify parts VI-C-1 & 7 of the MPD’s General Order 204.01 as necessary to

15
“protect the MPD’s interest in efficient and effective law enforcement” and, more specifically,

the MPD’s interest in “maintaining discipline, security, and confidentiality, and esprit de corps

among its officers.” Def.’s Mot. for Summ. J. at 7, 8. The Supreme Court has held that the

government’s burden of justifying the restriction “is not satisfied by mere speculation or

conjecture; rather, a governmental body seeking to sustain a restriction on . . . speech must

demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a

material degree.” Edenfield v. Fane, 507 U.S. 761, 770-71 (1993). In other words, the

government must “demonstrate actual harm before its interests may be deemed to justify a

restriction on speech . . . .” Sanjour v. E.P.A., 56 F.3d 85, 98 (D.C. Cir. 1995) (citing Edenfield,

507 U.S. at 770-71) (striking down prior restraint in part because the government agency did not

make any effort to demonstrate that the restraint at issue was adopted to address genuinely

experienced harms); see also Fire Fighters Ass’n v. Barry, 742 F.Supp. 1182, 1191 (D.D.C.

1990) (internal citation omitted) (“the defendants must show that the plaintiffs’ acts in displaying

the bumper stickers in some way harmed the government’s legitimate interest in maintaining

departmental discipline” through the Bumper Sticker regulation).

The Plaintiff argues that the MPD’s alleged “general interest in confidentiality and

efficiency” is conjectural and thus insufficient to meet the government’s heightened burden.

While the Defendants briefs are surprisingly sparse in their discussion of actual harms, the

Defendants do cite to several exhibits explaining the confidential and tactical importance of the

recording to two ongoing criminal investigations. See, e.g., Pl.’s Ex. 11 (Chief Lanier Letter

denying appeal). In any event, “a court, in deciding whether concrete harm exists, is not limited

to objective evidence presented by the government, but may draw reasonable inferences from the

circumstances surrounding the event.” Fire Fighters Ass’n, 742 F. Supp. at 1191 (citing Hall v.

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Ford, 856 F.2d 255, 261 (D.C. Cir. 1988)).

As an initial matter, the D.C. Circuit has held that “because of the special degree of trust and

discipline required in a police force there may be a stronger governmental interest in regulating

the speech of police officers than in regulating the speech of other governmental employees.”

O’Donnell, 148 F.3d at 1135. The D.C. Circuit further explained in Boehner, 484 F.3d at 579,

that “those who accept positions of trust involving a duty not to disclose information they

lawfully acquire while performing their responsibilities have no First Amendment right to

disclose that information.” Courts have long been deferential to rules or regulations restricting

government employees from disclosing confidential or otherwise protected information, even if

lawfully obtained. Id. at 578 (finding that the House Ethics Committee rule prohibiting

committee members and staff from disclosing “any evidence relating to an investigation to any

person or organization outside the Committee unless authorized by the Committee” was

“reasonable” and raised no First Amendment concerns); see also Connick, 461 U.S. at 153 n. 14

(observing that the government's case for regulating employee speech is strengthened when the

expression violates a rule or regulation); Snepp v. United States, 444 U.S. 507, 516 (1998)

(upholding as constitutional under the First Amendment provision in CIA contract requiring

prepublication review before CIA officers published any information relating to the agency

because of risk of secure information being compromised); Weaver, 87 F.3d at 1443 (upholding

agency regulation requiring prepublication review of any employee publication relating to the

work of the agency because of risk of disclosure of confidential information or information

otherwise harmful to foreign relations); Kim, 808 F. Supp. 2d at 56-57 (upholding as

constitutional under the First Amendment federal statute prohibiting the disclosure of

confidential information by individuals holding a security clearance). Accordingly, the Court

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grants substantial weight to the MPD’s proclaimed interest in promoting agency effectiveness by

restricting the disclosure of information related to its operations, including the investigation of

incidents inside its police offices.

The interests the MPD seeks to protect by employing the General Order to limit the

disclosure of information, like that released by the Plaintiff, are real and not conjectural. The

Plaintiff released a recording to the media that contained information central to two separate

ongoing criminal investigations and an ongoing internal investigation into MPD practices. In

reviewing the recording before releasing it to the union, the MPD had determined that it should

be for internal investigation purposes only and not released to the public. The Court can

reasonably infer, especially in light of the police department’s strong interest in confidentiality

and discipline, that releasing the recording to the media just as the MPD was beginning to gather

information to conduct these investigations, was disruptive to the MPD’s ability to effectively

handle these investigations.5

Finally, the General Order is narrowly tailored to actually protect the MPD’s efficiency and

confidentiality interests. Part VI-C-1 of the General Order restricts the release of confidential

information and, specifically, confidential information that may jeopardize the successful

conclusion of an investigation. By definition, the release of such information would compromise

the MPD’s effectiveness as an agency. This restriction is time-limited and extends only through

the “conclusion” of an investigation, i.e. the period of time when the information would actually

harm the MPD’s operations. Part VI-C-7 restricts the release to the public of MPD documents,

and only documents, “not listed as releasable.” The Plaintiff argues that Part VI-C-7 provides no

5
The Plaintiff argues that there is evidence in the record that the Plaintiff’s release of the tape did not
cause any disruption to the MPD’s operations. However, the Plaintiff only cites to the opinion Officer
Yarbaugh during his deposition. One officer’s personal opinion about the impact of the Plaintiff’s speech
is insufficient evidence to make this a genuine issue of material fact.
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definition of what documents are included in the prohibition and sweeps broader than necessary

to achieve the MPD’s confidentiality goals. However, Part VI-C-7 must be read in the context of

the General Order as a whole. Part VI-B, which immediately precedes Part VI-C, lists all

“information that may be released to the public.” Accordingly, Part VI-C-7 restricts individuals

from releasing all documents for public inspection that are not included in the list enumerated in

Part VI-B. While the category of documents subsequently qualified as not releasable by Part VI-

C-7 remains large, its breadth is reduced by the fact that the limitation applies only to the public

inspection of documents. Consequently, Part VI-C-7 does not prohibit oral speech related to

documents “not listed as releasable” so far as that speech is not otherwise considered confidential

or protected. The Court can reasonably infer that creating a category of protected documents in

an organization where confidentiality and trust are paramount is reasonably necessary to the

MPD’s effectiveness. Moreover, contrary to the Plaintiff’s contention, there is no risk that the

application of the General Order will prohibit the disclosure of information that is not in fact

confidential and documents that are in fact releasable because the General Order only prohibits

the release of exactly that information. Cf. Harman, 140 F.3d at 119. In addition, in the instant

case, the MPD conducted a prepublication review of the recording and determined that it

contained information that made its release appropriate for internal investigation only and not for

the public. Consequently, by restricting only confidential and protected information, the General

Order “restricts no more speech than is ‘reasonably necessary’ to achieve the government’s

interests.” Weaver, 87 F.3d at 1443 (quoting NTEU, 513 U.S. at 474.

IV. Pickering/NTEU Balancing

Given the minimal burden on the Plaintiff’s ability to speak and the government’s strong

interest in regulating the release of a narrow category of information that would affect the

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confidentiality and effectiveness of MPD operations, the Pickering/NTEU balancing test weighs

in favor of finding the General Order, as applied to the Plaintiff, constitutional. Most

importantly, the General Order does not restrict the Plaintiff’s expression of his personal views.

The General Order simply restricted the Plaintiff’s ability to release the recording itself at the

time he did, not express his personal views on safety concerns related to the barricade situation.

Indeed, Chief of Police Lanier stated that she did not find it harmful for legitimate safety

concerns to be brought to the attention of the public by the D.C. police union. Moreover, the

restriction on the Plaintiff’s ability to release the recording is time-limited to the duration and

conclusion of the ongoing investigations. Pursuant to the General Order, the Plaintiff would

presumably be free to release the recording upon the investigation’s conclusion or once it was

determined that releasing the recording would not jeopardize the investigations. However, at the

time the Plaintiff released the recording, the MPD had conducted a prepublication review of the

recording and determined that, given its contents and its central relevance to two ongoing

criminal investigations, the recording was only appropriate for internal review, not public

review. Just as many courts have recognized before, this Court recognizes the heightened

interest a police department has in regulating officer speech so as to ensure confidentiality and

the effectiveness of its operations. The MPD had legitimate concerns that the two ongoing

criminal investigations would be jeopardized by the release of the recording. The General Order

was narrowly tailored to restrict the release of such information and, accordingly, cannot be

found to be an unconstitutional prior restraint on speech as applied to the Plaintiff.

IV. CONCLUSION

For the foregoing reasons, the Court finds that under the Pickering/NTEU balancing test,

the government’s interest in restricting the Plaintiff’s speech through parts VI-C-1 & 7 of MPD

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General Order 204.01 outweighs the Plaintiff’s interest in the type of speech restricted by the

General Order. Therefore, parts VI-C-1 & 7 of MPD General Order 204.01 are not an

unconstitutional prior restraint on speech. Accordingly, the Plaintiff’s [99] Motion for Summary

Judgment is DENIED and the Defendants’ [100] Motion for Summary Judgment is GRANTED.

An appropriate Order accompanies this Memorandum Opinion.

/s/
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE

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