At the same time that people are ranting and raving about governmental intrusion into their privacy, the Internet is exploding with millions of examples of individuals voluntarily sharing with the online world the most personal and intimate details of their lives and attitudes. Twitter, MySpace, Facebook, YouTube, LinkedIn, and thousands of other social networking Websites carry information that can be accessed by criminals and their attorneys, as well as by employers.
Before law enforcement officers open up to the worldwide web, it's a good idea to think about the possible consequences. What's the worst that could happen?
You Could Lose an Arrest
In New York, a jury acquitted an ex-con on gun possession charges after the arresting officer was impeached by statements he had made on his Facebook page. The defense was that the officer used excessive force and then planted the gun on the defendant to create a justification for rough treatment. At trial, the officer was confronted with the fact that on his Facebook page, he listed his mood as "devious," claimed to be watching the movie "Training Day" as preparation for the case, and boasted that if an officer "is going to hit a cuffed suspect, at least get your money's worth."
After the acquittal, the officer acknowledged that the "not guilty" verdict was partially his fault, agreeing that the information he had posted on Facebook "paints a picture of a person who could be overly aggressive. You put that together, it's reasonable doubt in anybody's mind." The defense attorney labeled the officer's foolhardy Facebook postings "an outright gift to the defense."
Since this case, criminal defense attorneys everywhere now routinely scour the Internet, including the most popular social networking sites, to gather intelligence, embarrassing information, and potential impeachment ammunition on officers who are witnesses in upcoming trials, and who have been foolish enough to offer themselves up for sacrifice on the altar of bravado.
You Could Lose Your Job
An Indiana State Trooper unburdened himself of strong feelings he had about his job on his Facebook page. He described himself as a "garbage man" for cleaning up society's "trash," and said that if a homeless person attacked him with a spoon, "He'll probably wind up shot. These people should have died when they were young anyway. I'm just doing them a favor." Following a public uproar, the trooper resigned while under disciplinary investigation.
A San Diego officer was fired for offering sexually explicit videos for sale through an online auction site. In the videos, the officer appeared in scenarios depicting him as a uniformed policeman engaging in explicit conduct (although he did not wear his departmental uniform). For example, one video showed the officer issuing a citation, but then revoking it, undoing his uniform and masturbating.
After his dismissal for conduct unbecoming an officer, he sued the department, claiming an infringement of his First Amendment right of free expression, since his conduct occurred off duty. His case went all the way to the U.S. Supreme Court. The court ordered the lawsuit dismissed, upholding the department's right to fire an officer for behavior that casts the department in an unfavorable light and detracts from its public mission. The court said this:
"A government employee does not relinquish all First Amendment rights otherwise enjoyed by citizens just by reason of his or her employment. On the other hand, a governmental employer may impose certain restraints on the speech of its employees, restraints that would be unconstitutional if applied to the general public.
"This officer's 'expression' was widely broadcast, linked to his official status as a police officer, and designed to exploit his employer's image. The 'speech' in question was detrimental to the mission and functions of the employer. We have little difficulty in concluding that the City was not barred from terminating the officer by our First Amendment rulings." (City of San Diego v. Roe)[PAGEBREAK]
An officer in the Chandler (Ariz.) Police Department operated a Website featuring explicit photographs of himself, his wife, and another woman engaging in sex acts together, as well as a videotape of his wife masturbating. Even though the officer did not appear in uniform or identify himself as a policeman, information about his site soon circulated in the department and in the community, and the local press reported that a Chandler police officer was running a sexually explicit Website.
At the conclusion of an internal investigation, the department dismissed the officer for bringing discredit to the police force. The officer sued in federal court on First Amendment grounds. He argued that the department had no right to fire him for something he did outside his city employment. Rejecting his claims and affirming the city's right to terminate him, the Ninth Circuit Court of Appeals ruled as follows:
"Police departments, and those who work for them, are engaged in a dangerous calling and have significant powers. The public expects officers to behave with a high level of propriety, and, unsurprisingly, is outraged when they do not do so. The law and officer safety demand that police be given a degree of respect, and the sleazy activities of this officer and his wife could not help but undermine that respect. Police officers are quintessentially public servants, and part of their job is to safeguard the public's opinion of them.
"Whether the officer's activities were related to his employment or not, the City could discipline him for his vulgar and indecent activities without violating his First Amendment rights. This plaintiff may have the constitutional right to run his sex-oriented business, but he has no constitutional right to be a policeman for the City at the same time." (Dible v. City of Chandler)
You Could Go to Jail
In a pending case, Internet postings are alleged to have played a dual role in criminal charges now being litigated. A 26-year-old woman was found in her Staten Island apartment with an electrical cord wound around her neck. Investigators believe the man now accused of murdering her was enraged over her Facebook entries that discussed his sexual activities, so he confronted her and killed her.
One of the coroner's EMTs working the crime scene-a retired NYPD detective-is alleged to have taken an unauthorized photo of the victim's corpse and then posted it on his own Facebook page. This individual was fired and charged with criminal misconduct for these actions, and he faces up to a year in jail if he is convicted.
Increasingly, privacy protection statutes prohibit law enforcement employees and others from making unauthorized access to or publication of confidential information. Violation of such a law by an officer who posts details of an investigation or crime scene photos online could get the officer fired, sued, and prosecuted.
The Internet has beneficially expanded our access to all kinds of valuable information. It certainly has its uses in law enforcement communication and research. But it's no place for officer indiscretions that can only bring trouble to the indiscreet officer and his or her department. When in doubt about the wisdom of sharing a questionable posting with the rest of the planet, instead of "Send," consider "Delete."
Devallis Rutledge is a former police officer and veteran prosecutor who currently serves as Special Counsel to the Los Angeles County District Attorney. He is the author of 12 books, including "Investigative Constitutional Law."