Hernandez v. City of Phx.

541 F.Supp.3d 996

Juan HERNANDEZ, et al., Plaintiffs,

v.CITY OF PHOENIX, et al., Defendants.

No. CV-19-05365-PHX-MTL

United States District Court, D. Arizona.

Signed May 26, 2021

Steven James Serbalik, Steven J Serbalik PC, Scottsdale, AZ, for Plaintiffs.

Stephen Barry Coleman, Pierce Coleman PLLC, Scottsdale, AZ, for Defendants.

ORDER

Michael T. Liburdi, United States District Judge

Before the Court is Defendants City of Phoenix, Chief of Police Jeri Williams, and Commander Shane Disotell's (collectively, "Defendants") Motion for Summary Judgment (the "Motion") (Doc. 75). This Motion is fully briefed. (Docs. 78, 79.) The Court also heard oral argument from the parties on the Motion. (Doc. 82.) The Court resolves the Motion as follows.

I. BACKGROUND

Plaintiffs Juan Hernandez and Mark Schweikert are two Phoenix police officers and members of Plaintiff Arizona Conference of Police and Sheriffs ("AZCOPS") (collectively, "Plaintiffs") organization. (Doc. 47-1 at 3.) Plaintiffs allege that the Phoenix Police Department's (the "Department") Social Media Policy (the "Policy") abridges their freedom of speech and violates the due process clause. (Id. at 16.) Plaintiffs focus on the following five provisions of the Policy:

(1) When using social media, Department personnel should be mindful their speech becomes part of the worldwide electronic domain. Therefore, adherence to City and Department policies is required in the personal use of social media. Employees are prohibited from using social media in a manner that would cause embarrassment to or discredit the Department in any way.

(2) Employees are prohibited from posting on any networking or internet site any photographs, video, or audio recordings taken on Department property and/or in the performance of official duties (including official Department training, activities, or work specific assignments) that are detrimental to the mission and functions of the Department, that undermine respect or public confidence in the Department, could cause embarrassment to the Department or City, discredit the Department or City, or undermine the goals and mission of the Department or City.

(3) Department personnel are free to express themselves as private citizens on social media sites to the degree that their speech does not impair working relationships of this Department, are detrimental to the mission and functions of the Department, that undermine respect or public confidence in the Department, cause embarrassment to the Department or City, discredit the Department or City, or undermine the goals and mission of the Department or City.

(4) Department personnel may not divulge information gained while in the performance of their official duties, make any statements, speeches, appearances, and endorsements where the employee is acting or appearing to act in an official capacity or as an official representative of the Department or City; or publish materials that could reasonably be considered to represent the views or positions of this Department without express authorization.

(5) For safety and security reasons, Department personnel are cautioned not to disclose their employment with this Department. As such, Department personnel are cautioned not to:

• Display Department logos, uniforms, or similar identifying items on personal web pages.

• Post personal photographs or provide similar means of personal recognition that may cause them to be identified as an employee of this Department.

(Doc. 47-1 at 10–11; Doc. 47-3 at 10–11.)

The City has charged Hernandez with violating the Policy and he is, therefore, subject to discipline. (Doc. 36 at 3–5.) The alleged violations stem from four Facebook posts from 2013 and 2014 that came to the Department's attention, in 2019, when the Plain View Project, a non-party organization that maintains a database of police officer's social media posts, publicized them along with others. (Id. at 4; Doc. 47-1 at 5 (quotations omitted).) The four posts for which Hernandez faces discipline are summarized as follows:

(1) September 30, 2013: A meme with what appears to be mugshots of men of Middle Eastern descent and containing the text "THE MOST COMMON NAME FOR A CONVICTED GANG RAPIST IN ENGLAND IS ... Muhammad Note to the British media – these gangs are not comprised of ‘Asians’; they are Muslims."

(2) October 8, 2013: A meme entitled "You just got to love the Brits" recounting a story in which a Muslim taxi passenger asked the driver to turn off the music in the car for religious reasons, to which the driver responded "[i]n the time of the prophet, there were no taxis, so piss-off and wait for a camel!"

(3) December 24, 2013: A meme entitled "RECENT CONTRIBUTIONS TO SCIENCE BY ISLAM" in which Muslim scholars and theologians expressed controversial opinions regarding female drivers, DNA testing in rape cases, the Earth revolving around the Sun, and the link between dressing modestly and earthquakes.

(4) January 9, 2014: Article entitled "Military Pensions Cut, Muslim Mortgages Paid By US!"

(Doc. 36 at 2–3.)

The release of Hernandez and other officers’ social media posts led to negative media attention. (Doc. 48-1 at 3 (collecting stories).) The Department's Professional Standards Bureau soon after launched an investigation under the direction of Commander Disotell. (Id. ) When questioned by an investigator, Hernandez explained that his posts were intended to "encourage discussion about assimilation" and "drive discussion." (Id. at 4–7.) The investigation concluded that Hernandez's posts violated the Policy for, among other reasons, attracting "overwhelming media coverage," causing "major reputation damage" to the Department, and encouraging the spread of "fear and hatred towards people of Middle Eastern descent, as well as those practicing the Muslim faith." (Id. at 9.) The investigation report recommended referring Hernandez to the Department's Disciplinary Review Board. (Id. at 10.)

Before his disciplinary hearing could take place, Hernandez and AZCOPS filed a complaint and a Motion for a Temporary Restraining Order, Preliminary Injunction, and Permanent Injunction. (Docs. 1, 2.) The Court denied Plaintiffs’ request for preliminary injunctive relief and later granted in part Defendants’ motion to dismiss. (Docs. 36, 68.) Two claims survived—unconstitutional vagueness and municipal liability under Monell v. Department of Social Services , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). (Doc. 68 at 21.) After the parties conducted discovery, Defendants filed the instant Motion to dispose of the remaining claims. (Doc. 75.)

II. LEGAL STANDARD

Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party," and material facts are those "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). At the summary judgment stage, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255, 106 S.Ct. 2505 (internal citations omitted); see also Jesinger v. Nev. Fed. Credit Union , 24 F.3d 1127, 1131 (9th Cir. 1994) (holding that the court determines whether there is a genuine issue for trial but does not weigh the evidence or determine the truth of matters asserted). That said, "[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).

III. DISCUSSION

Defendants maintain that the Policy is sufficiently detailed to survive a vagueness challenge. (Doc. 75 at 1–3.) To support that argument, they note that this noncriminal policy is owed deference and does not come close to chilling a substantial amount of constitutionally protected speech. (Id. at 3–14.) They argue that the Monell claim fails because it is not a stand-alone claim that can exist without an underlying constitutional violation. (Id. at 16–17.) Plaintiffs respond by contending there is an issue of material fact as to whether a person of ordinary intelligence can determine what conduct or speech the Policy prohibits. (Doc. 78 at 2.) To further this argument, Plaintiffs primarily point to deposition testimony to prove that the Policy is unconstitutionally vague. (Id. at 3–10.)

A. Vagueness Challenge

The prohibition against vague laws is rooted in the Due Process Clause of the Fifth and Fourteenth Amendments. See United States v. Williams , 553 U.S. 285, 304, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) ; see also Carissa Byrne Hessick, Vagueness Principles , 48 ARIZ. ST. L.J. 1137, 1140–41 (2016) (discussing the intersection of insufficiently precise language and the due process clauses). Whether a policy or law is void for vagueness is a "pure question of law." Dimaya v. Lynch , 803 F.3d 1110, 1112 (9th Cir. 2015). A statute, or here a policy, can be impermissibly vague for either of two independent reasons. "First, if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory enforcement." Hill v. Colorado , 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000). In the public employment context, policies "are not void for vagueness as long as ordinary persons using ordinary common sense would be notified that certain conduct will put them at risk of discharge." See San Filippo v. Bongiovanni , 961 F.2d 1125, 1136 (3d Cir. ...