NYPD officers' Snapchats not a free speech issue

NYPD officer suspended for Snapchat post
NYPD officer suspended for Snapchat post

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NYPD officer suspended for Snapchat post 01:12

Story highlights

  • Danny Cevallos: NYPD officers were within rights to handcuff residents during warrant, but Snapchatting photos went too far
  • Access to government records has a clear social benefit but posting pictures of handcuffed citizens for a laugh does not, he says

Danny Cevallos (@CevallosLaw) is a CNN legal analyst and a personal injury and criminal defense attorney practicing in Pennsylvania and the US Virgin Islands. The opinions expressed in this commentary are his.

(CNN)The NYPD has suspended an officer who apparently took pictures of handcuffed family members in Brooklyn while police executed a search warrant, and then allegedly posted them on Snapchat, with titles like "Merry Christmas it's NYPD!" and "Warrant Sweeps it's still a party smh."

Where to begin.
There have been reports that the warrant may have been executed at the wrong home, but assuming for the moment it was a valid warrant, the first issue is this: Was it okay to simply cuff everyone in a house while executing a search warrant, so these detained people could be stared at like an exhibit at the museum?
Actually, it is -- within reason.
Danny Cevallos
Officers have the authority to use reasonable force, including using handcuffs (considered only a "marginal intrusion" by the courts) to detain people in the home while a search warrant is executed. There are limits though: a search warrant doesn't authorize the automatic arrest of everyone in the house (and the line between temporarily being handcuffed and arrested can feel quite thin if you're on the receiving end).
But posting Snaps of detained persons? We don't need the Supreme Court to weigh in on that issue. The Court of Public Opinion will do just fine, and the verdict is in: It's asinine behavior.
But, some might protest, isn't an officer's social media posting protected as part of his First Amendment right to free speech?
Unequivocally: no. Not by a long shot.
Government employees, like police officers, should be particularly cautious around social media, because they don't have the same First Amendment protections as other private citizens. A public employee's speech is only protected if the employee spoke as a citizen (and not an officer) on a matter of "public concern." If not, then the First Amendment doesn't prohibit retaliation against the employee.
Snapchatting pics of unwilling, detained citizens is likely not a matter of "public concern." Even if it somehow was, there's no question the speech occurred in the course of, or connected with, official police responsibilities. Come on -- the pic was taken during the execution of a warrant, with police authority, and even contained a holiday greeting, "from the NYPD." Does that sound like citizen speech, completely separated from official duties? No.
But the bizarre part is this: a government employee may have frittered away a secure job, a pension and benefits for speech that was totally worthless. The speech didn't rail against injustice. It didn't challenge outdated social mores or even some entrenched departmental bias. In the old days, people lost their jobs for speech supporting civil rights or opposing war. Now, people are losing their jobs because they just had to impress their friends on Snapchat.
It's always particularly mind-boggling that people sabotage themselves on social media. Tweets, Facebook updates, Instagram, and of course, Snapchat, are not anything any of us needs to do. People risk their careers and their reputations on an activity that will not earn them any money or advance their lives -- other than providing a fleeting hit of narcissistic satisfaction. There are other places to get your dopamine.
Police officers, particularly when it comes to image-sharing of life on the job, seem to have an uneasy relationship overall with image-sharing technology. Even as some officers unofficially post police activity images on social media and put their jobs in potential peril as a result, other officers are resistant to incorporating official cameras to their tour of duty -- even when it could benefit them.
For example, New York City is now offering a 1% salary increase as an incentive for officers to wear body cameras.
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Attorney Lisa Bloom recently framed the irony to me perfectly on an episode of "PrimeTime Justice" on HLN: some police departments are reluctant to wear body cameras, or refuse to release their body camera videos which have captured disputed police activity. Meanwhile, individual police officers are apparently posting unsolicited images of police activity on social media. Looking on the bright side, Snapchatting is a form of transparency -- just not what citizens envisioned when they thought of "open government." Access to government records has a clear social benefit. Posting pictures of handcuffed citizens for a laugh... does not.