Sunday, February 11, 2018

Perez v. City of Roseville: When is firing a cop for off-duty sexual conduct unconstitutional?

In Perez v. City of Roseville, No. 15-16430 (Feb. 9, 2018), the Ninth Circuit ruled that a police officer's private, off-duty sexual conduct is protected by the U.S. Constitution. Janelle Perez was fired after an internal affairs investigation revealed that she was having an extramarital affair with a fellow officer. She presented evidence that some investigators recommended that she be fired based, in part, on their moral disapproval of her extramarital sexual conduct. Citing the Supreme Court's decision in Lawrence v. Texas, which struck down a Texas statute criminalizing same-sex sexual conduct, the Ninth Circuit explained that the Constitution protects the freedom to engage in intimate sexual conduct and that the government may not "stigmatize private sexual conduct simply because the majority has 'traditionally viewed a particular practice,' such as extramarital sex, 'as immoral.'" Therefore, terminating a police officer for private, off-duty sexual conduct would be unconstitutional unless the conduct either "adversely affected the officer's on-the-job performance or violated a constitutionally permissible, narrowly tailored department policy." 

The Ninth Circuit's decision stands in stark contrast to Coker v. Whittington, No. 16-30679 (May 23, 2017), in which the Fifth Circuit held that the defendant did not violate the constitutional rights of two sheriff's deputies when it fired them for violating its Sheriff's Code of Conduct by moving in with each other's wife and family before getting divorced from their current wives. (See this post.)  Although the Coker case presents somewhat different facts, the deputies, like Perez, were allegedly fired for private sexual conduct that was perceived as being immoral, so they may very well have fared better in the Ninth Circuit. 

Despite the Ninth Circuit's narrow approach, police departments presumably would have some discretion  to discipline officers for inappropriate sexual conduct. For example, sexual conduct between an officer and a suspect being investigated by the officer might be seen as affecting job performance. Similarly, a department might be able to justify a policy that limits sexual conduct between a supervisor and a subordinate.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.