Former state AG: Ability to fire officers for off-duty actions depends on belief and behavior

A number of police departments around the country are considering vetting their police officers, potentially looking at some of their social media posts to decide whether or not to fire them or if it would disqualify them from doing their job. Is that legal?

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Former state Attorney General Rob McKenna says it’s easy to screen someone’s social media before they’ve been hired, but it’s more difficult for someone who has already been hired.

“It’s pretty easy to do when you haven’t hired someone yet because it’s part of the screening process and decisions to hire or not hire someone can be based on a lot of factors, including what you see in their social media posts,” McKenna said. “It’s the same phenomenon we see with lots of employers who have routinely screened social media for job applicants.”

“It is much harder once you actually have hired someone and they’ve been working for you for a while,” McKenna added. “That’s for a couple of reasons. First, the First Amendment, which we can talk about, and secondly, they’re protected by union contracts. Anytime you start singling people out for discipline or dismissal based on beliefs, it becomes problematic. Now, singling people out, disciplining them, and maybe even firing them for behavior is something else.”

Law enforcement officers in Philadelphia, as an example, were found to be posting racist remarks on Facebook, which McKenna says is behavior, though it’s also exercising speech.

“It’s a kind of speech that doesn’t enjoy a very high level of protection,” he said.

“But where someone is fired because they have shown up at a Proud Boys meeting, or express very conservative political views, then you’re shading into the area of belief and that becomes a lot more problematic as a basis for firing or disciplining a police officer,” he added.

Part of being a police officer, KIRO Radio’s Dave Ross noted, is having the trust of the public, which should be taken into consideration at least before joining a group that would make it harder to the citizens they serve to trust them.

“They should consider that, particularly if they’re joining groups that have clearly defined racist views, well expressed, frequently expressed racist views,” McKenna said. “Maintaining the trust of the people you serve is important, which is why police officers who post racist comments or hate speech on Facebook can get fired, because that is completely destructive of the credibility and trust you need to have.”

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McKenna does not think any court would overturn the firing of an officer who posted something, as an example, calling for the violent overthrow of the U.S. government. He thinks it’s when people are fired for showing up at a particular rally or when it’s believed they belong to a particular group.

“Here’s a pretty clear recent example: You’ve got about 30 active and retired police officers who are under scrutiny for attending President Trump’s January 6th rally in D.C. Seven of them are under investigation for being among those who actually stormed the Capitol. So it’s a lot easier to see why someone who stormed the Capitol should come under scrutiny and, if they’re still employed, be fired or disciplined than it is to see someone who just showed up at the rally and then went home,” he said.

“Again,” McKenna added, “the difference between belief and behavior is really key there.”

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