by Steven Betz and Michael Rains
The California Court of Appeal, in a recent decision entitled Bautista v. County of Los Angeles (2010) 10 CDOS 15104, discusses police officers’ First Amendment right of association while off duty.
Deputy Sheriff Emir Bautista was terminated by the Los Angeles County Sheriff’s Department for engaging in a personal relationship with a known prostitute and heroin addict named Shawn Crook in violation of Department policy, which prohibited deputies from “knowingly maintaining a personal association with persons who are under criminal investigation or indictment or who have an open and notorious reputation in the community for criminal activity.”
Bautista initially met Crook while on-duty. Crook admitted that she was a prostitute and a heroin addict. Bautista frequently saw Crook and eventually began a friendship with her: Bautista gave Crook his home phone number and gave her rides home after she finished working the street. He also drove her to a methadone clinic, where Crook received treatment for her addiction. At no point did Bautista seek permission from his department to engage in this relationship or notify a superior of the relationship.
On at least two occasions, members of the Gardena Police Department observed Bautista with Crook. In subsequent contacts, the Police Department learned that Bautista was a deputy sheriff. Around this time, Bautista and Crook moved in together and were eventually married. The Sheriff’s Department learned of Bautista’s relationship with Crook and terminated him for violating department policy.
On appeal, Bautista argued that the regulation was unconstitutional because it violated his freedom of association guaranteed under the First and Fourteenth Amendments to the United States Constitution. The legal arguments on appeal essentially boiled down to one question: Was the department’s policy a direct infringement on Bautista’s right to marry Crook (i.e. his freedom of association) or did the policy merely pose an incidental effect on Bautista’s right to marry? The court found the question to be important because if it found the policy was a direct infringement on the right to marry, it would likely be invalidated, and Bautista would prevail. If it merely was an incidental infringement on the right to marry then the Department would prevail.
The Court found that the policy was an incidental infringement on the right to marry because it did not “directly and substantially” interfere with the right to marry. Police departments, the Court reasoned, have a legitimate interest in regulating the behavior of their sworn officers to minimize conflicts of interest and protect the credibility and integrity of the departments themselves. In coming to its decision, the Court relied on many other cases which upheld anti-fraternization rules prohibiting police officers from socializing with those who they know are engaging in criminal activity.
Bautista argued that to apply the rule to him was absurd, because he in fact had helped someone get out of a life of crime: his relationship with Crook enabled her to cease working as a prostitute and helped her overcome her drug addiction. The Court, however, was unpersuaded by this argument. The Court noted that despite these positive aspects of the relationship, the Department was nonetheless injured in its standing with the community and with other law enforcement agencies. Therefore, the Court found it irrelevant that Bautista in fact saved Crook from a life of crime.
This case is important to peace officers and their careers because it reaffirms other court rulings which authorize police departments to regulate a police officer’s personal life. While restrictions that “directly and substantially” interfere with a police officer’s freedom of association will be found unlawful, indirect restrictions will be upheld if they are chiefly aimed at protecting the integrity of the law enforcement agency and its officers.
In previous decisions which deal with police officer’s Fifth Amendment rights to remain silent, the courts have uniformly held that an officer has a constitutional right to remain silent during an internal affairs interview, but he does not have a constitutional right to keep his job if he makes such a decision. In many respects, this case is similar—Bautista had a right to associate with and marry a drug addict and prostitute, but he did not have a right to keep his law enforcement job for doing so.
