PAX Centurion - January / March 2016

www.bppa.org PAX CENTURION • January/March 2016 • Page 39 Legal Thoughts: Peter D. Pasciucco, Esq. Byrne & Anderson, L.L.P., Counsel to Members of the Boston Police Patrolmen’s Association For those of you that don’t know me, my name is Peter Pasciucco. I joined Byrne & Anderson as an Associate Attorney last May after 4+ years as a Suffolk County ADA. I met a lot of you during my time in the DA’s office as I circulated through four of the District Courts and finished off my run in Suffolk Superior. For those of you I haven’t yet had the pleasure to meet, I look forward to crossing paths in the weeks, months and years ahead. Below are just a few thoughts I have on the personal use of social media by police officers. A ccording to a recent study, seventy-three percent of the adult population in the United States (ages 18-64) have social media profiles on applications such as Facebook, Twitter or Instagram. Of that seventy-three percent figure, the average person spends approximately 1.75 hours a day accessing these apps, either posting or tweeting their own material or browsing that of friends and fol- lowers. I knew the numbers were high but had no idea they were at that level. AsYogi Berra once said “The future ain’t what it used to be.” Along with the rising and seemingly here-to-stay usage of social media amongst people in this country has come an alarming wave of disciplinary action taken against public employees for their behavior on these sites. It has almost become routine to see headlines such as “Officer Terminated For Facebook Post” or “Cop Suspended for Racist Tweet” or “Teacher Being Investigated For Crude Photo.” For example, some of you may have heard about theWeymouth firefighter who was suspended 90 days without pay last month after writing a Facebook post directed at the addiction and overdose problem that is plaguing most cities and towns across the Commonwealth. The unidentified firefighter’s comments that “ Narcan is the worst drug ever created, let the d-bags die....you use you should loose (sic) ” went viral. Even the President of theWeymouth Firefighters Local 1616 felt the need to make a public statement describing the remarks as “ disappointing ” and declaring that he “ believe[s] these comments are an isolated situation that not at all represent the hardworking men who risk their lives every day. ” TheWeymouth incident is really nothing new. AMinnesota police officer made national news a few weeks ago after posting a drawing of a vehicle running over a group of people with a caption below it stating “Nobody cares about your protest.” The post came two days after an AfricanAmerican man was fatally shot by Minneapolis Police and Black Lives Matter protesters flooded a busy interstate. Similarly, inAugust 2014, an Elgin, Illinois Police Officer was fired for a Facebook post he made about the events in Ferguson, Missouri. Officer Jason Lentz, an eighteen-year veteran of the Elgin Police Department commented on Michael Brown’s death saying “ Hmmm...innocent victim my ass. Did So- ciety a favor. ” The Department claimed Lentz’s firing was appropriate as his conduct undermined the city’s credibility and was in violation of the police department’s social media guidelines. Lentz vigorously fought his termination, arguing that the post was protected by the First Amendment because it was on a “private” page and was aimed at a matter of public concern. An arbitrator ultimately reinstated Lentz but avoided deciding the case on the merits of the First Amendment privilege, rather justify- ing the reinstatement by ruling that the Department erred in releasing Socially awkward confidential information to the public while the investigation was pending, thus violating the collective bargaining agreement. Before I wrote this article, I admittedly had to look up whether the Boston Police Department had an official social media policy for its em- ployees. After quickly perusing the rules and regulations, it became ob- vious that they do not. Police Departments in many big cities, including NewYork, Chicago, Philadelphia, have implemented written guidelines over the last few years to help its workers understand what is appro- priate and what isn’t. The Seattle Police Department, run by a couple familiar faces, followed suit and instituted their own policy in 2015 that mirrors all the others. Seattle Police employees, for example, are barred from “making, sharing or commenting in support of any posting that includes harassment, threats of violence, or similar inappropriate conduct.” Employees also cannot “make, share, or comment in sup- port of any posting that ridicules, maligns, disparages, expresses bias, negative connotations, or disrespect toward any race, religion, sex, gender, sexual orientation, nation- ality, or any other protected class of individuals.” If formal policies are the new norm, then why is Boston lagging behind? For one, social media behavior can easily fit into a number of Rule 102’s respectful treatment and/or public integrity catch-all regulations. But also, after reviewing the policies of other cities, I have come to the conclusion that apart from putting personnel on notice that they can be disciplined for social media outbursts, these policies don’t really add much. Opinions as to what fits into the so-called prohibitions will always differ. If a Boston Police officer tweeted out a similar drawing to the Minnesota one discussed above, would he or she be suspended? It’s hard to say. With the public outrage across Massachusetts following the Route 93 protesters last year, I just don’t know. The tweet might actually set the record for “likes”. If an officer posts something in opposition to gay marriage, will that be grounds for termination? If an officer makes a joke about a woman in the oval office, what will happen? There’s a huge gray area and apart from an outright prohibition on personal use of these apps, no policy will change that. As public employees, police officers have always been held to higher standards than those in other professions. That is nothing new. Addition- ally, the First Amendment rights of police officers, as it relates to both on and off duty speech, has been curbed considerably in recent years. Public statements that police officers make, no matter what the forum is, will continue to be scrutinized with a fine tooth comb. A Facebook and Twit- ter user myself, albeit of the backseat variety who browses much more than comments, I can’t help but notice how “political” my newsfeeds have become recently. If I sign onto Facebook right now, I guarantee that alongside someone’s post about their first snap-dog of the season at Sully’s on Castle Island will be a post or a tweet about email servers, feeling the Bern or trying to makeAmerica even greater. With the elec- tion season kicking into high gear as we head towards the summer and the debate over issues such as immigration, national security, government spending and gun control heating up amongst the candidates, I anticipate See Awkward on page 41