The Police Law Blog

By John V. Berry, www.berrylegal.com

In an interesting case, the U.S. Court of Appeals for the Fifth Circuit has upheld the
termination of a police officer from the City of Austin, Texas. The case, Smith
v. Acevedo, No. 10-51236 (5th Cir. May 24, 2012) involved a number of
claims from the officer involved, including violations of the First Amendment, Due Process and 42 U.S.C. §1983. 

The officer involved in the case was terminated by the Department for allegedly engaging in sexual harassment and insubordination.  The officer had apparently posted information about sexual harassment allegations that he found on the Internet about the Department’s Chief of Police.  The Department found out about the research that the officer had conducted and he was then charged with a number of general order violations. 

At the trial level in U.S. District Court, the officer prevailed on one count alleging that
the Department’s General Order was a prior restraint on free speech, but then only
awarded him the sum of one-dollar.  All of the significant counts alleged by the officer were dismissed by the District Court and the officer appealed to the U.S. Court of Appeals for the Fifth Circuit.

The Fifth Circuit, on appeal, upheld the holding of the District Court in denying the officer’s appeal, ruling as follows:

“[I]t is clear that, beyond violation of APD General Order A201.04(G)(2), Smith was terminated based on his work performance, his disciplinary history, and sustained violations for unauthorized computer use and insubordination in both 2005 and 2008. Moreover, assuming that Smith was not charged with violating APD General Order
A201.04(G)(2), Smith conceded that he could have been terminated based upon the
insubordination or unauthorized computer use violations. Although Smith argues
that he would not have been terminated for those infractions, he fails to cite any evidence in the record to create a genuine dispute with the 2008 memorandum, which places significant emphasis on his recidivism. Based on these facts, it is clear that Smith suffered no actual harm for violating an unconstitutional APD General Order because Smith would have been terminated notwithstanding that violation.”

A copy of the court’s ruling is attached Download 2012 Acevedo Case  and should be read in full for a good context of what occurred in this case.  It is important in removal cases for police officers to have counsel advising them through these types of disciplinary actions.  Our law firm represents police officers facing disciplinary action and can be contacted at www.berrylegal.com for assistance.