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Maryland Cybercasualty BC Files First Amendment Suit

A Maryland battalion chief who was terminated earlier this year for posts he made on Facebook has filed suit claiming his punishment violated his First Amendment rights.

Howard County BC Kevin Buker was fired on March 6, 2013 over certain social media activities he engaged in during January and February, 2013. According to the complaint:

  • On Sunday, January 20, 2013, while working a twenty-four (24) hour shift as the Battalion Chief for the Second Battalion of the Howard County Department of Fire and Rescue Services, Mr. Buker “posted” a satirical comment concerning assault weapons legislation that was pending in several jurisdictions in the United States on his Facebook page. The post could only be viewed by Mr. Buker’s Facebook “friends,” i.e. those individuals selected or approved by Mr. Buker, not members of the general public. At the time of his posting, Mr. Buker had approximately four hundred fifty (450) “friends.” Specifically, Mr. Buker stated in his post, “My aide had an outstanding idea …. Let’s kill someone with a liberal … then maybe we can get them outlawed too! Think of the satisfaction of beating a liberal with another liberal … its almost poetic….”
  • Mr. Buker’s Facebook friends subsequently responded to his initial post.
  • One of Mr. Buker’s Facebook friends, Mark Grutzmacher, responded to the post stating, “But … was it an ‘[assault] liberal’? Gotta pick a fat one, those are the ‘high capacity’ ones. Oh pick a black one, those are more ‘scary.’ Sorry had to perfect on a [sic] cool idea!” 
  • The aforementioned response, when read in its proper context refers to provisions in assault weapons legislation pending at the time which categorizes weapons by their size, magazine capacity and/or color.
  • Mr. Buker “liked,” a way of acknowledging a post on the Facebook platform, Mr. Grutzmacher’s comment, and then sent the following reply comment: “Lmfao! Too cool, Mark Grutzmacher.”
  • Back and forth comments concerning assault weapons legislation continued for several hours. These comments were made by Mr. Buker’s other Facebook friends.
  • Assistant Chief Jerome, Mr. Buker’s supervisor, ordered Mr. Buker to remove his original Facebook post regarding assault weapons legislation on January 22, 2013.
  • Mr. Buker complied with Assistant Chief Jerome’s request on January 23, 2013.
  • Mr. Buker made the following post to his Facebook friends when he deleted his original post regarding assault weapons legislation:

To prevent future ‘butthurt’ and comply with a directive from my supervisor, a recent post (meant entirely in jest) has been deleted. So has the complaining party. If I offend you, feel free to delete me. Or converse with me. I’m not scared or ashamed of my opinions or political leaning, or religion. I’m happy to discuss any of them with you. If [you’re] not man enough to do so, let me know, so I can delete you. That is all. Semper Fi! Carry On.

  • Mr. Buker’s January 23, 2013, post generated further comments among his Facebook friends. In response to a Facebook friend’s comment that “[a]s long as it isn’t about the FD, shouldn’t you be able to express your opinions,” Mr. Buker posted the statement:

Unfortunately, not in the current political climate. Howard County, Maryland, and the Federal Government are all Liberal Democrat held at this point in time. Free speech only applies to the liberals, and then only if it After [sic] tis in line with the liberal socialist agenda. County Government recently published a Social media policy, which the Department then published it’s own. It is suitably vague enough that any post is likely to result in disciplinary action, to include this one. All it took was one liberal to complain … sad day. To lose First Amendment rights I fought to [ensure]. Unlike the WIDE majority of Government I serve.

  • The Howard County Department of Fire and Rescue Services thereafter moved Mr. Buker out of field operations on January 25, 2013, pending the results of an internal investigation.
  • On February 17, 2013, a volunteer firefighter with the Howard County Department of Fire and Rescue Services posted on the internet a picture of an elderly woman with her middle finger extended. Under the picture the volunteer firefighter posted the statement, “This page, yeah the one you’re looking at, it’s mine. I’ll post whatever the fuck I want.” Above the picture, the volunteer firefighter posted the statement, “for you Chief.”
  • Mr. Buker “liked” the volunteer firefighter’s February 17, 2013 posting.
  • The Howard County Department of Fire and Rescue Services thereafter completed its investigation into Mr. Buker’s Facebook postings. The County and Chief Goddard subsequently terminated Mr. Buker’s employment effective March 6, 2013.

Chief Buker filed suit in US District Court last month claiming that his postings were “protected speech under the First Amendment to the United States Constitution in that they constitute a public employee’s speech on a matter of public concern.”

He is seeking reinstatement, back pay, damages for “mental anguish and distress”, costs and attorneys fees.

Here is a copy of the complaint. Buker v Howard County Fire

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Comments - Add Yours

  • Kevin

    Is the fact that Chief Buker posted these while he was on duty the issue here?  It seems obvious he was speaking for himself and not as a representative of the Fire Department, That being the case would the Pickering test be in Chief Buker's favor?

    • http://firelawblog.com Curt Varone

      Kevin

      Fair question. Pickering requires that to recieve First Amendment protection a public employee engage in speech as a private citizen. Whether Chief Buker was… will likely be a question for a jury.

      There is also the issue of what the FD's policy says about on-duty social media activities. Relatively few FDs prohibit engaging in personal social media activities while on duty. If Howard County has such a policy, he could be in trouble right there for violating the policy… in which case the 1st Amendment will be less of a concern.

      Assuming he gets by the policy issue (my guess is he will)… and assuming he posted it in his own name without somehow implicating the FD (eg. he did mention his subordinate (aide))… he gets by the first part of Pickering. The next inquirey is whether he posted/spoke on a matter of public concern. The complaint alleges that he did and assuming that is correct – then we get to the real UGLY UGLY UGLY part of Pickering… the part the defies our ability to write a policy to meet it (I don't even try)… the dreaded balancing test:

      The employee must prove his/her interest "in commenting upon matters of public concern" outweighs the "interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees”

      I have no idea how a court is going to come out on the balancing test based on these facts. Maybe Chip will venture a guess. He is our resident 1st Amendment guru. I spend most of my time trying to keep firefighters and fire departments from getting to this point.

      One point the complaint mentions in a few places is that the department has not claimed that the remarks caused any harm or disruption in the workplace… In the absence of harm to the department by the statements the balancing test may well favor Chief Buker. On the other hand… how much harm is enough to tip the scales… Again… this area is a mess. The only ones who like it are judges and law professors. It is a nightmare trying to write a policy and offer guidance to chiefs, union leadership and personnel about where the boundaries lie.

  • Chip Comstock

    I'm betting on the chief on this one-unless his posting violated a policy regarding Internet use on duty.   However, I bet no one else has been disciplined for violating that policy (if it exists), and thus that claim may be found to be pretextual.  A great case to follow though!