California Police Chief- Fall 2013 CPCA_2018_Spring Magazine_Final | Page 9

aware of this display, the question arises as to whether the
department is required, pursuant to Brady v. Maryland i ,
to notify prosecutors of this information if the officer is a
witness in a criminal proceeding.
Constitutional issues associated with either policy
formation affecting the First Amendment are complex and
vary based upon the underlying content of the speech, the
forum in which it is made and the potential for disruption of
departmental operations. The United States Supreme Court
announced, in Pickering v. Board of Education of Township
High School District 205 ii , a test for analyzing restraints on
government employee speech. The Court noted that it must
“arrive at a balance between the interests of the employee,
as a citizen, in commenting upon matters of public concern
and the interests of the State, as an employer, in promoting
the efficiency of the public services it performs through
its employees.” In later decisions, the Court stated, in City
of San Diego v. Roe iii , that, “a government employer can
enact certain restraints on the speech of its employees,
restraints that would be unconstitutional if applied to the
general public.” However, the Supreme Court has also
recognized that employees have a right to speak on matters
of public concern. Generally, such speech involves concerns
regarding government policies that interest the public at
large.” iv Courts examine the content, form, and context
of a given statement, as revealed by the whole record, in
assessing whether an employee’s speech addresses a matter
of public concern. v
In the City of San Diego case, the court used the
Pickering test to determine whether a police officer’s First
Amendment right to freedom of speech was violated
when the Department terminated him for making
and selling videotapes showing the officer engaged in
sexually explicit acts. The Court stated that there was
no difficulty in concluding that the officer’s expression
did not qualify as a matter of public concern under any
view of the public concern test. The employee’s speech
did nothing to inform the public about any aspect of the
San Diego Police Department’s functioning or operation.
The officer’s expression was widely broadcast, linked to
his official status as police officer and designed to exploit
his employer’s image. The Court ruled that the speech in
question was detrimental to the mission and functions of
the employer and there was no basis to find it of concern
to the community. vi Accordingly, the Court upheld the
termination.
A case by the Second Circuit Court of Appeals applied
these speech standards to analyze a situation similar to
the hypothetical posited above. Specifically, in Inturri
v. City of Hartford, vii the Court reviewed several officers’
challenges to an order that gave the police chief authority
to order personnel to cover tattoos deemed offensive and/
or unprofessional and an order to cover spider-web tattoos,
which were associated with racist violence. The District
Court had previously granted the defendants summary
judgment on the plaintiff officers’ claims that the orders
violated their First Amendment rights to free speech and
their Fourteenth Amendment rights to equal protection
and infringement of their personal liberty interests. In
upholding the ruling, the Court of Appeals stated that,
“the General Order implicates expressive conduct, but
does not affect any significant amount of conduct that
would actually be protected by the First Amendment.” viii
Accordingly, the Court held that no First Amendment
claim would be permissible. In analyzing the Fourteenth
Amendment claims, the Court also concluded that it
had, “no difficulty in determining that it was rational
for the police chief to require police officers to cover a
tattoo which could reasonably have been perceived as a
racist symbol.” As such, the Court conclud ed the order
requiring the officers to cover their spider-web tattoos was
constitutionally permissible.
These cases demonstrate the complicated legal issues
associated with management decisions that potentially
infringe upon officers’ constitutional rights under the
First and Fourteenth Amendments. The cases on the issue
diverge in their applications of the tests noted above, thus
rendering decision making difficult for law enforcement
executives. In addition to the issues noted above, police
management may also be obligated to grant a religious
accommodation with respect to display of an officer’s
tattoo, which might otherwise contravene a department’s
policy. Accordingly, it is imperative that you consult with
your department legal advisor prior to implementing a
policy governing display of tattoos.  ■
Information contained in this article is for general use and does
not constitute legal advice. This article is not intended to create,
and receipt and review of it does not constitute, an attorney-
client-relationship with the author.
373 U.S. 83 (1963)
391 U.S. 563 (1968)
iii
543 U.S. 77 (2004).
iv
Id. at 80
v
Id.; see also Connick v. Myers, 461 U.S. 138, 146-147.
vi
City of San Diego, at 83 -85.
vii
165 Fed. Appx. 66 (2006).
viii
Id. at 69.
i
ii