Announcement

Collapse
No announcement yet.

Milwaukee Cop/Important Legal Decision for U

Collapse
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

    Milwaukee Cop/Important Legal Decision for U

    See "John Roe v. City of San Diego" 9th circuit, decided January 29, 2004, 2004 U.S. App. Lexis 1330 (No Federal Reporter number yet) John Roe is a pseudonym.

    I may be perverted but I couldn't make anything this gross up.

    "Roe was employed as a city of San Diego police officer for more than seven years. He was fired after the San Diego Police Department discovered he was selling sexually explicit, non-obscene [editorial comment, Bullshit] videos on the adults only section of eBay. The videos depict Roe alone, with his face partially masked, taking off a generic police uniform and masturbating. The Department became aware of Roe's activities on eBay through the following sequence of events. In July 2000, Roe's supervisor, Sergeant Robert Dare, searched eBay and located a tan uniform formerly used by the San Diego Police Department. The uniform was offered for sale by a person with the eBay username of '[email protected]'

    Sgt. Dare searched eBay for other items offered by Code3stud and discovered there were such items in eBay's adults-only section. After complying with eBay's access requirements, Sgt Dare entered the adults only section and viewed the listings for the items offered by Code3stud. Some of the listings contained Code3stud's picture, and Sgt Dare recognized the man pictured as Roe.

    Sgt Dare printed out some of the listings and shared them with other supervisors in Roe's chain of command, including Captain Glenn Breitenstein. Capt breitenstein contacted the Department's Professional Standards Unit ('PSU') which began an investigation into Roe's activity on eBay. On July 21, 2000, an undercover PSU investigator, Sergeant Alan Clark, purchased two items from Code3stud: a pair of white men's briefs and a videotape depicting Roe engaged in masturbation. On September 7, Sgt. Clark, again acting undercover, asked Code3stud to produce a custom-made video depicting Code3stud issuing another man a citation and then masturbating. Code3stud agreed, produced the video and sold it to Sgt. Clark.

    All aspects of the production and sale of the videotapes were conducted while Roe was off-duty and away from his employer's premises and did not involve the use of any City or Department resources. None of the items Roe offered for sale identified Roe as an employee of the City or Department or as being affiliated with them in any way. He never identified himself by name in any sale or listing, and he never identified himself as a San Diego Police Officer. He described himself in his eBay seller's profile as living in 'Northern California' and being 'in the field of law enforcement.' He directed all payments to 'S. Shatwell,' a fictitious name, and utilized a post office box address in Northern California. There was no evidence that Code3stud's real identity was ever discovered by anyone other than Sgt. Dare and the police officers involved in the investigation.

    On October 17, 2000, Sgt. Clark interviewed Roe in person about his sale of videos and clothing on Ebay. Roe readily admitted to the off-duty conduct. Sgt. Clark completed his investigation on November 30 and concluded that Roe had violated three Department policies: Policy 9.06 -- Uunbecoming Conduct, Policy 9.07 -- Immoral Conduct, and Policy 5.12 -- Outside Employment. On December 20, 2000 Capt. Breitenstein ordered Roe 'to cease displaying, manufacturing, distributing, or selling any sexually explicit materials or engaging in any similar behaviors, via the internet, U.S. Mail, commercial vendors or distributors, or any other medium available to the public.'

    Roe removed all items he had listed for sale on eBay but did not change his seller's profile, which described the first two videos he had produced and listed their prices, and well as the price for a custom made video. On February 13, 2001, Sgt. Dare submitted a report concluding that Roe had violated a fourth Department Policy 9.04 -- Obedience to Lawful Orders -- and recommended disciplinary action. After providing Roe with notice and a hearing, the Department terminated Roe's employment on June 29, 2001 for violation of all four Department policies. . . .On September 28, 2001 Roe brought suit under 42 U.S.C. 1983 alleging that he was terminated principally for the content of his videos in violation of his constitutional right to freedom of speech."

    San Diego filed a 12(b)(6) motion under the Federal Rules of Civil Proceedure to dismiss Roe's claim for failure to state a claim. The federal court agreed that Roe's speech 'did not touch on a matter of public concern.' The ninth circuit court of appeals reversed the district court's decision, first citing decisions that nude erotic dancing and sexually explicit entertainment that is not obscene and that does not involve actual children falls within the ambit of the First Amendment. [citing Ashcroft v. Free Speech Coalition, 535 U.S. 234 the 'virtual child pornography decision']

    "If Roe were simply a member of the general public rather than a public employee, there is not doubt that his sexually explicit but not obscene videos would be entitled to some measure of First Amendment protection against government censure. The question we face here is whether Roe's status as a public employee means he has no First Amendment protection even though his expressive conduct occurred off-duty, away from the workplace and said nothing about Roe's government employment or employer. We conclude that Roe's expressive conduct retains a qualified First Amendment protection under the public concern test."

    The court reviewed the so called Pickering test (391 U.S. at 568) which is a balancing test "whereby the the interests of the employee as a citizen, in commenting upon matters of public concern, are weighted against the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." The usually daffy 9th circuit found that any matter that "relates to some issue of interest beyond the employee's bureaucratic niche" because it was directed to a segment of the general public fit the public concern criterion and was therefore entitled to some first amendment protection. The 9th circuit then reversed its lower district court and remanded the case to them to apply the Pickering balancing test.

    Bottom line if you were working in California you could get away with saying almost anything as long as you could claim it was expressed towards a segment of the general public (like Bullshido) and was not a personal job grievance.

    #2
    i didnot sign anything giving up my constitutional rights, i was under the impression you couldnt give up your rights, oh well i guess now in amerika they can be taken! , every day our basic rights are under attack from all sides, unreasonable search and siezures, free speech, gun ownership, its scary.
    8 years till retirement.

    Comment


      #3
      fear my sarcasim:D
      8 years till retirement.

      Comment


        #4
        My bet its going to be alot harder to get your rights back. Once its gone its like pulling teeth to get it back.
        Ghost of Charles Dickens

        Comment


          #5
          yes, unless you are in California or Mass and the issue does not involve gun control

          Comment

          Collapse

          Edit this module to specify a template to display.

          Working...
          X