EX-PHILADELPHIA POLICE CAPTAIN MIGHT HAVE PENSION REVOKED FOR PROTESTING AT OCCUPY PHILLY EVENT
/ 17.Feb, 2012
Recently, Philadelphia retired former police captain Raymond Lewis has been in the news for having been arrested for protesting at an Occupy Wall Street event, while wearing his old uniform. According to the AP, Philadelphia Police Commissioner Charles Ramsey sent a cease and desist letter
to Lewis ordering him to stop wearing his uniform to protests, stating that Lewis’ “First Amendment rights do not extend to improper and/or illegal use of the official uniform.” References were made to the possibility that wearing a uniform in a non-professional capacity could constitute impersonating a police officer. Lewis’ protest in uniform, albeit retired from the force, raises the question of whether First Amendment protection extends to police officers who participate in a protest or march while in uniform.
Courts have deferred to police departmental uniform policies as a legitimate exercise of police power. Local 491, International Broth. of Police Officers v. Gwinnett County, GA,
510 F.Supp.2d 1271 (N.D. Ga. 2007). In this case, a police officer challenged a policy which forbade officers from wearing their uniforms to county commission meetings. The court heard evidence that the policy was enacted for public safety purposes, not to stifle speech and that it was consistently applied. In upholding the rule, the court noted that the police force had “significant interests in maintaining tight control over its official symbols of authority.” Additionally, it also had significant interests in preserving “discipline, esprit de corps, and uniformity” and in manifesting official neutrality by “avoiding the appearance of partisanship or partiality.” The court stated that each of these interests has its foundation in the core police power to provide for the public safety.
In contrast, in Latino Officers Ass’n, New York, Inc. v. City of New York, 196 F.3d 458
(2d Cir. 1999), the Association of Latino Police Officers sought injunctive relief to prohibit the police department from preventing Association members from marching in uniform in a parade behind the banner of their group. The court held that because the uniforms were inherently tied to the Association’s message of preventing discrimination and because the department had allowed at least twenty-five other organizations to march in uniform, the police force could not demonstrate that a governmental interest outweighed the officers’ right to free expression.
Of course, if the officer degrades the uniform by, for example, appearing in a pornographic video in uniform, First Amendment protection fails to override the employer’s right to enforce a uniform policy. City of San Diego v. Roe, 543 U.S. 77 (2004).
Lewis’ appearance in uniform might be viewed as expressive conduct to the extent that he intended to convey the message that officers are part of the 99% or that an authority figure supported the Occupy movement. Policies designed to restrict the officer’s off-duty attendance in partisan political events or rallies in uniform may now come into greater focus. The Lewis story might be an opportune time for police departments to review their uniform policies and the consistency of their application.