Police Union Head Not Protected by First Amendment

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By Jon Steingart

Aug. 4 — A Washington, D.C., police officer who was also chair of the union wasn't protected by either the First Amendment or the city's whistle-blower law when he was suspended for three days for providing reporters with a recording of radio communications during an emergency response incident, a federal appeals court ruled Aug. 4.

Affirming summary judgment for the city, the U.S. Court of Appeals for the District of Columbia Circuit said the police department's “interests in non-disclosure outweigh [Kristopher] Baumann's and the public's interests in releasing the recording at the time he did.”

The emergency workers were responding to a barricade situation and exchanged gunfire with a suspect. Baumann contended he provided the recording in response to news reports that higher-ranking officials, including the mayor, urged personnel to employ tear gas, despite their lack of training for its use in barricade situations.

The appeals court also affirmed summary judgment for the city on Baumann's whistle-blower claims because the city law in effect at the time only allowed claims based on disclosures to public officials with authority to effectuate a government response to purported misconduct.

Judge Judith W. Rogers wrote the court's opinion, joined by Judges Merrick B. Garland and Cornelia T.L. Pillard.

Internal Investigation Led to Suspension

Several union members expressed concern to the union vice-chair about the tear gas directive. The vice-chair was a member of the barricade response team and was part of the group that responded to the incident, according to the city's brief.

The day after the incident, union officials met to discuss it, and Baumann ordered the vice-chair to investigate the matter, the court said.

Two days after the incident, a reporter told Baumann that police officials gave conflicting information about whether there had been an order to use tear gas.

Baumann ordered the vice-chair to obtain the recording from the incident, which he listened to and released to two reporters.

Baumann reluctantly participated in an internal affairs investigation into the incident and into how the media got the recording. After he revealed he was the source, he was suspended for violating a general order prohibiting officers from disclosing confidential information that may jeopardize the successful completion of an investigation.

Audience, Topic Not Covered by Law

Applying the balancing test established in Pickering v. Board of Education, 391 U.S. 563, 1 IER Cases 8 (1968), the court found that Baumann's First Amendment rights weren't violated because the “recording of the barricade incident falls squarely within the definition of confidential information that may jeopardize the successful conclusion of an investigation.”

And the city whistle-blower law didn't protect Baumann because the law in effect at the time only protected disclosures made “to a supervisor or a public body.” Since Baumann's disclosure, the law was amended to cover disclosures made “to any person,” the court said.

Even if Baumann had made his disclosure to a proper recipient, his claims would fail because he didn't identify a specific violation of any law, rule or regulation that was violated, as the whistle-blower law required, the court said.

Conti Fenn & Lawrence LLC in Baltimore represented Baumann. The office of the attorney general for the District of Columbia represented the city.

To contact the reporter on this story: Jon Steingart in Washington at jsteingart@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the opinion is available at http://www.bloomberglaw.com/public/document/Kristopher_Baumann_v_DC_et_al_Docket_No_1307189_DC_Cir_Nov_27_201.