High Court to decide if SWAT officer will get Fourth Amendment slap across the mouth

On the surface, the question seems simple and pragmatic: Does a Special Weapons and Tactics (SWAT) officer have a reasonable expectation of privacy in text messages sent from his work-issued pager – a pager used to make SWAT call-outs? Never mind the fact that SWAT officers, during the execution of their law enforcement duties, must always be mindful of the Fourth Amendment rights of ordinary citizens, and thus, would likely have a better than average understanding of Fourth Amendment law and privacy rights. It would seem that the SWAT officer in Quon v Arch Wireless Operating Co, Inc (9thCir, 91 EPD ¶43,233) could not have been anything but unreasonable in believing that the personal, and sometimes sexually explicit, text messages he sent from his work pager would be shielded from review by his employer.

As anyone prosecuting or defending criminal cases knows, police communications concerning criminal activity are generally discoverable – and are often subpoenaed by defense attorneys to determine whether Fourth Amendment rights have been violated. Further, under public disclosure laws, such as the California Records Act, records related to the conduct of public business may be subject to disclosure. Add to that potential media requests for police communications in high profile cases – the kind that involve SWAT teams – and disclosure of SWAT-related communications would seem predictable.

But the Ninth Circuit held that the City of Ontario, California violated the Fourth Amendment and state constitutional privacy rights of the SWAT officer, as well as the officers he texted, when, as part of a text message overage audit, it read transcripts of the messages the officer sent on his work-issued pager.

Anything but simple. As illustrated by the sharply divided Ninth Circuit’s order denying panel rehearing and rehearing en banc, the legal issues and the interpretation of the facts in this case are anything but clear. For starters, the concurring order, written by Judge Wardlaw (who also authored the Ninth Circuit opinion), insists that the appeals court did not, in determining the reasonableness of the scope of the police department’s search in auditing the records, impose a “less intrusive means” test. Judge Ikuta, authoring the dissent, urges with equal force, that the panel, albeit without acknowledgement, did in fact apply such a test in its analysis – contrary to Supreme Court precedent. (Assuming the dissent is correct, the Ninth Circuit created a circuit split as to whether the “less intrusive means” analysis should be applied in determining the reasonableness of government activity under the Fourth Amendment.)

The concurrence and dissent also differ in their characterizations of the police department’s policies and practices related to privacy and auditing of the pagers. However, there clearly was no written policy specifically directed to the privacy of text messages transmitted by the pagers.

Certiorari granted. Today, the High Court granted the City of Ontario, California’s petition for certiorari (City of Ontario v Quon, USSCt, Dkt No 08-1332). The questions presented to the Court are:

1. Whether a SWAT team member has a reasonable expectation of privacy in text messages transmitted on his SWAT pager, where the police department has an official no-privacy policy but a non-policymaking lieutenant announced an informal policy of allowing some personal use of the pagers.

2. Whether the Ninth Circuit contravened this Court’s Fourth Amendment precedents and created a circuit conflict by analyzing whether the police department could have used “less intrusive methods” of reviewing text messages transmitted by a SWAT team member on his SWAT pager.

3. Whether individuals who send text messages to a SWAT team member’s SWAT pager have a reasonable expectation that their messages will be free from review by the recipient’s government employer.

Implications for private employers? Of course, these Fourth Amendment issues arise in the context of government employment. But private employers and employees may have a stake in the outcome, too. With employees using internet forums to make sometimes disparaging comments about employers, and their frequent use of company equipment to visit favorite websites and communicate with personal acquaintances, employers will increasingly monitor such use. It seems likely that the police department’s privacy policy, or lack of a policy specifically directed to the pagers, will play a significant role in the Supreme Court’s analysis. To that extent, the outcome will be at the very least, instructive, and perhaps even, will point the way for employers seeking to avoid liability for violating employee privacy interests.