Thursday, January 3, 2019

Pillow Talk

The United State Court of Appeals for the Fourth Circuit remanded a civil claim brought by a whistleblower who was terminated for reporting police misconduct, albeit to his spouse, who worked for a television station

In the early morning hours of October 20, 2013, [prisoner] Grose was strapped to a prisoner restraint chair that rendered him completely immobile while Officer James Moore punched him multiple times in the head. After Moore’s brutal assault, other correctional officers, who had watched the attack, tased Grose in “drive stun” mode and placed his head into a football helmet strapped to the restraint chair. Grose died a few hours later. Just months before, Moore had been the target of an internal investigation at YCDC and ordered by Sheriff Bryant to undergo psychological evaluation for repeatedly striking the head and neck of another inmate in a restraint chair.

Later that day, Trent Faris, a public information officer for the York County Sheriff’s Office (YCSO), held a press conference about Grose’s death. He stated that Grose had been placed in a restraining chair for his own safety because he had been “very, very combative,” and that Grose died as a result of injuries that he gave himself by hitting his head on the back of the chair. J.A. 987. Faris said nothing about Moore punching Grose 12 times in the head. When asked by a reporter whether officers would face disciplinary action for Grose’s death, Faris answered “[a]ll our officers, detention officers, did exactly what they were supposed to do last night.” J.A. 991.

At the time of Grose’s death, Billioni was a Master Control Specialist at YCDC, a position that gave him access to the correctional facility’s video surveillance system. Billioni heard Faris’s statement while off-duty. At work the next day—October 21, 2013—he decided to watch the surveillance video of the incident. What he saw disturbed him. Later that day, Billioni told his wife, a research analyst for WCNC, the NBC affiliate in Charlotte, North Carolina, about the existence and contents of the video. Billioni’s wife contacted Stuart Watson, an investigative reporter at WCNC, about the contradictions between the video and the YCSO press conference. Watson subsequently filed a request for the video pursuant to the Freedom of Information Act and contacted the YCSO’s general counsel about the circumstances surrounding Grose’s death.

On October 22, 2013, Sheriff Bryant held a meeting to determine whether there was a witness who knew something about Grose’s death that had not been publicly reported. Sheriff Bryant also called in the State Law Enforcement Division (SLED), the South Carolina agency that conducts internal investigations for law enforcement agencies. YCDC administrators James Arwood and Richard Martin began their own internal investigation by interviewing Billioni, because they knew that his wife worked at WCNC. During the interview, Billioni admitted to watching the video but lied about describing it to his wife. The next day, Billioni sent Arwood and Martin an email admitting that he had told his wife—who had subsequently told WCNC reporters—about the video.

Billioni was given the choice to either resign or be fired. He reported the conduct to the Department of Justice and

Soon after his termination, Billioni filed suit against Sheriff Bryant, YCDC, York County, and the YCSO alleging various violations of state and federal law. The district court dismissed or granted summary judgment to defendants on all of Billioni’s claims but one: a claim of retaliatory discharge in violation of the First Amendment, brought under 42 U.S.C. § 1983.

The court

By looking to whether Sheriff Bryant made a “showing of disruption within the YCSO” instead of whether Sheriff Bryant made a showing that he reasonably apprehended a disruptive effect from Billioni’s speech, the district court committed legal error. Instead of conducting this fact-intensive balancing in the first instance, we remand to the district court to use the correct legal standard to determine whether the evidence permits a conclusion that a reasonable factfinder could find that Sheriff Bryant reasonably apprehended disruption within the YCSO as a result of Billioni telling his wife about the surveillance video that outweighs Billioni’s interest in speaking out about the surveillance video...

We remand to the district court to use the correct legal standard to determine whether Billioni’s speech is protected under the First Amendment.

The unpublished decision does not have precedential value.

The District Court decision is linked here. (Mike Frisch)

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