Supreme Court Refuses to Hear Howard County Social Media Appeal

The US Supreme Court has denied the request of Howard County Battalion Chief Kevin Buker to consider an appeal of his termination in 2013. Chief Buker was fired following a series of Facebook posts that began over the gun-control debate.

For those interested in the details on the case, here are links to earlier coverage. December 2013. March 2017. June 2017. An outline of the facts is provided below.

After he was terminated, Chief Buker filed suit challenging his discipline as being a violation of his First Amendment rights. Both the trial court and the US 4th Circuit Court of Appeals upheld the termination, concluding that the county’s interests in managing its workplace outweighed Chief Buker’s right to free speech based on the Pickering Balancing Test.

Chief Buker’s last hope was an appeal to the US Supreme Court via a mechanism known as a Petition for a Writ of Certiorari. For the non-attorneys, a Writ of Certiorari is a request made by a litigant who lost a case in a lower court, asking the Supreme Court to grant a review the ruling. It is a discretionary proceeding in so far as the Court need not accept the case for review.

On October 2, 2017, the US Supreme Court issued an order denying Certiorari to Chief Buker as well as over 1300 other cases. The ruling effectively ends Chief Buker’s case.

Here is a copy of the Court’s order: 100217zor_o7jp

 

Details from the June 27, 2017 post:

Chief Buker made a Facebook posting on January 20, 2013 in response to news coverage on the gun-control debate. He was on duty at the time and posted on his personal Facebook page:

My aide had an outstanding idea . . lets all kill someone with a liberal . . . then maybe we can get them outlawed too! Think of the satisfaction of beating a liberal to death with another liberal . . . its almost poetic . . .

That post prompted a post by a second Howard County firefighter, Mark Grutzmacher, who responded:

But . . . . was it an “assult 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 cool idea!

Chief Buker “liked” Grutzmacher’s comment and replied, “Lmfao! Too cool Mark Grutzmacher!”

The postings came to the department’s attention shortly thereafter, prompting Assistant Chief Jerome to advise Chief Buker to review his comments and remove anything that was inconsistent with the department’s social media policy. While Chief Buker did not believe his posts violated the policy, he removed them, and on January 23, 2013 posted:

To prevent future butthurt and comply with a directive from my supervisor, a recent post (meant entirley 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.

Beneath the post, someone posted “As long as it isn’t about the [Department], shouldn’t you be able to express your opinions?” to which Chief Ruker posted:

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 is 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, up to and including termination of employment, to include this one. All it took was one liberal to complain . . . sad day. To lose the First Amendment rights I fought to ensure, unlike the WIDE majority of the Government I serve.

Three weeks later another firefighter posted a picture of an elderly woman with her middle finger raised. The photo included the statement: “THIS PAGE, YEAH THE ONE YOU’RE LOOKING AT IT’S MINE[.] I’LL POST WHATEVER THE FUCK I WANT[.]”

The firefighter added his own comment “for you Chief.” Chief Buker then “liked” the photograph.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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