Ferguson: Revenge of Officer Keith Novara

He didn’t like what she said. Whether it was her twits, her video or just the fact that Leigh Maibes protested isn’t clear. But St. Louis police officer Keith Novara decided that it was his official duty to make sure her employer knew of his displeasure.

From St. Louis Today:

A woman who criticized police on Twitter says an officer called her boss in an attempt to get her fired, so she filed a formal complaint “to return the favor.”

The officer doesn’t deny placing a call to the woman’s boss. His union says he was within his rights.

When Maibes called Novara back after she learned of his call to her boss, she recorded the conversation in which he attempted to justify himself.

Novara is heard saying, “I let them know, yes.”

Novara says that he was giving the broker a “heads up” and communicating with him as part of his responsibilities as a South Patrol officer. Novara adds that he was warning Maibes’ boss that the phones at the business might be “blowing up,” from people upset about her tweets.

“Why did you think it was your place to do that?” Maibes asks.

“Some of the tweets that I was seeing were inciteful,” Novara said. “That’s why I just wanted to let him know.”

This is the sort of explanation, seemingly benign excuses, that almost feels as if it ought to make sense.  After all, what’s wrong with transparency?  If Maibes did, said and wrote what she did, what is the harm in her boss being told of it? She did it, right?

And on the flip side, what’s so wrong about Keith Novara exercising his right to free speech, just as we applaud with so many others, and as we argue is the right of people despite hurt feelings resulting from it?

The [police] association’s business manager, Jeff Roorda, claimed in a statement Thursday that Novara’s speech was protected under the First Amendment and that he was only “setting the record straight on public statements made by people spreading irresponsible lies and calling for violence against the police.”

Had some yokel named Keith called up Maibes’ employer to air his gripes with her twits or conduct, it would have been obnoxious, but protected.  Wearing a badge doesn’t forfeit the free speech of the person.  But that’s not how the call came. Rather, it came from Police Officer Keith Novara, and the speech of a person who presents himself in his official governmental capacity is no longer the individual’s free speech, but the official person’s speech.  And the latter is not free.

In Garcetti v. Ceballos, the Supreme Court distinguished the speech of a person as a private individual from the speech of the same person as an official representative of government.  When speaking in his official capacity, speech is constrained by the limits and requirements of the public employer.

As the Court’s decisions have noted, for many years “the unchallenged dogma was that a public employee had no right to object to conditions placed upon the terms of employment—including those which restricted the exercise of constitutional rights.” Connick, 461 U. S., at 143. That dogma has been qualified in important respects. See id., at 144-145. The Court has made clear that public employees do not surrender all their First Amendment rights by reason of their employment. Rather, the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern. See, e. g., Pickering, supra, at 568; Connick, supra, at 147; Rankin v. McPherson, 483 U. S. 378, 384 (1987); United States v. Treasury Employees, 513 U. S. 454, 466 (1995).

When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom. . . . Public employees, moreover, often occupy trusted positions in society. When they speak out, they can express views that contravene governmental policies or impair the proper performance of governmental functions.

Novara’s “exercise” of free speech, behind his official capacity as a police officer, was clearly intended as intimidation.  The veiled threat of some amorphous concern, or harm, befalling Maibes’ employer because of her protest speech is flagrant, despite the cop’s attempt to couch his motives in the language of beloved transparency and well-intended concern for the welfare of the employer.  Or to put it differently, the attempt to excuse it was total malarkey.

So too was the union’s spin that this was just a cop exercising his rights as a good American.

The question for many is why is this attempt at intimidation in return for Maibes’ exercise of her right to free speech and free association any different than any other intimidation for speech that others find annoying or outrageous.  The answer is that it wouldn’t be, but for the fact that Novara called as a police officer rather than a regular guy.

Had he not identified himself as a cop, the call would have been protected speech.  While Maibe is entitled to her exercise of free speech, so too is Novara in his private capacity.  Sure, paying Maibe back for her antagonism toward the police, the shooting of Michael Brown, the handling of protests, and any other matters that disturbed her, might seem wrong given that so many support the protesters in Ferguson.

But which side you take doesn’t define or limit free speech.  Even if private citizen Keith was just some badge-licking sycophant, so what? He’s allowed to be, just as Maibe’s allowed to be disgusted by the killing of Michael Brown.

Officer Novara, on the other hand, has no such right. When a cop exercises the power of his position, seeks to use his shield to gain submission, it bears no connection to a private citizen’s exercise of free speech, and he takes no solace in the right he possesses had he acted in his personal capacity.

Put on the cop hat and bear the consequences. Whether it’s the latitude they’re given to shoot, or demand submission to their will, there is a price to pay.  The bill just came due for Officer Novara.  That said, it’s unlikely that the investigation into his conduct will come at as high a price as he tried to make Maibe pay.

H/T Mike Paar

14 thoughts on “Ferguson: Revenge of Officer Keith Novara

  1. ItsJustMe

    This is beyond disturbing to me and just proves the very reason why there are protests in Ferguson.

    What kind of a case, if any, does Leigh have against Navaro and the SLMPD?

  2. Peter Gerdes

    While I also find this kind of behavior disturbing because a call from a police officer conveying an individual’s misconduct inherently enhances the perceived harm and even if the officer only conveys truthful information they have the ability in their official capacity to make those facts seem as damning as they wish, e.g., “We are also investigating her in connection with much more serious charges,” is surely true (they have asked the prosecutor if they can charge her with more than whatever they think they can).

    However, having said this I have two concerns:

    First, you suggest that the police officer’s conduct would have been constitutionally protected had he called as a private individual. What if the police officer had called and said “This is Keith Novara, I am an officer in the Fergusun police force but am calling in my capacity as a private individual. During my official duties today I arrested one of your employees, Leigh Maibes, and I wanted to inform you so you can take steps to avoid unwanted publicity associated with her actions. The Fergusun police force was lead to Leigh by a series of tweets she posted that were open incitements to engage in illegal racial violence. While I can’t disclose anything beyond what is on the public record you should be aware we are also investigating her for more serious charges.”

    Surely, it can’t be that merely including the fact that explains how he got such information (he was the involved officer but is calling in his personal information) could make the call unprotected. Indeed, since the officer surely retains the right to contact private individuals in his private capacity and share with them public details of what happened during his day. I mean he must still retain a right to share public facts he learns during his day with his friends and a right to call new people he “respects” when he happens to learn public facts that he thinks might concern him.

    Now one might be able to create a theoretical remedy where intentional disclosures by a government employee made with the intent to intimidate an individual for exercising a constitutional right (or out of or whatever language you like). But in practice, excepting certain extreme sustained patterns of abuse, I don’t see how one can ever really prove the intentional element of the crime and without that I fail to see how you avoid the constitutional issues.

    Still, even if true I’m hopeful as to the ultimate effect. True, modern information technology means the officer can find out someone’s employer without ever engaging in misuse of official resources or misconduct while on the job (pull their facebook page up after they clock out). However, it also provides the means to document each instance an officer attempts to intimidate someone for protected conduct by threatening to influence their employer.

    Where I lack hope is for people who have been caught by the police committing some actual crime that might normally go unpunished but are treated harshly because the officer also discovers they engaged in speech (threaten to reveal officer behavior) that they dislike. Minor drug offenses are particularly worrying in this capacity since such a large fraction of the population is guilty of them especially at the ages they are most likely to be particularly politically active.

    1. SHG Post author

      Two points: First, I appreciate that you are interested and have decided that rather than have any clue what you’re writing about, you are entitled to blather at painful length your personal musing. But this is not your soap box, your musings contribute nothing illuminating and, sadly, you cannot invent your vision of normative law because it makes sense to you. This is a law blog. You are not entitled to spew nonsense that tends to make people stupider (surely?).

      Second, brevity is the soul of wit.

      I have no issue with your commenting, but please be brief, please stay on topic and please stop your personal musings, or I will no longer publish your comments.

    2. ItsJustMe

      Peter – Leigh has not been accused of committing any crime, nor is she being investigated by Law Enforcement. I find your post absurd, disturbing and completely unnecessary.

  3. Wrongway

    I understand the ‘acting as an official’ limits on free speech & the difference between (hypothetically) attending the protest & supporting in jeans & a t-shirt, vs. attending & supporting the protesters in full uniform..

    So my 2 questions are:
    “Is there a recording of the phone call Novaro made to Maibes’ Employer ??”
    “If no recording exist, then will her employer testify on her behalf ??”

    If the answer to these questions is ‘No..’, then you’re gonna have a hard time holding Novaro accountable..
    As outraged as anyone would (& should be..), it’s an uphill battle to get any remedy to that matter..
    & that’s a sad thing ..

        1. Waste

          There is no mention of a recording between Novaro and Maibes’ employer. However there is a recording between Maibes and Navaro where he admits to calling the employer. It is likely she would not need her employer to testify as she has the officer admitting to a number of the issues at hand. Even if the employer does not want to testify he could still be subpoenaed and deposed.

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