No First Amendment Problem with Police Department Allowing Pro-LGBTQ Uniform Patches But Rejecting Alternatives Police Officer Requested

The factual backstory, from an earlier District Court decision:

In approximately August 2017, defendant Edgardo Garcia, then the Chief of Police, created a Lesbian, Gay, Bisexual, Transgender, and Queer (“LGBTQ”) Advisory Board at the SJPD…..  Concurrent with the creation of the advisory board, Chief Garcia created a LGBTQ Liaison Officer position within the SJPD…. In August 2019, as part of the region’s celebration of Silicon Valley Pride Month, Chief Garcia raised a rainbow-themed LGBTQ pride flag in place of the City of San Jose flag on the flagpole outside SJPD headquarters.

On July 28, 2020, Chief Garcia issued official SJPD Memorandum #2020-33, introducing a rainbow-themed LGBTQ pride shoulder patch for the SJPD uniform.  On the same day, Chief Garcia also issued official SJPD Memorandum #2020-36, authorizing SJPD uniformed personnel to “permanently” wear either a Breast Cancer Awareness, Pride, or Military specialty patch on their uniforms “in lieu of the traditional shoulder patch.”

On November 11, 2020, Mr. Sangervasi sent a memorandum to Chief Garcia titled, “Desecration of The Uniform by Memorandum #2020-33.” Mr. Sangervasi’s memorandum “detailed his intent to forever protect and defend the sacrosanct neutral and impartial visual appearance of The American Uniform” by submitting various “free speech patch and flag designs” that he wanted the SJPD to adopt. Mr. Sangervasi proposed patch designs featuring phrases and images such as “natural hetero-sexual pride,” what appears to be Christian rosary beads encircling the traditional SJPD crest, and an image of the Christian archangel Saint Michael. He proposed flag designs featuring phrases and images including, for example, “father + mother = girls + boys,” “white lives matter,” and the confederate battle flag.

And the Ninth Circuit’s analysis from Sangervasi v. City of San Jose, decided Tuesday by Judges Diarmuid O’Scannlain, Andrew Kleinfeld, and Barry Silverman:

Sangervasi [a former San Jose police officer] contends that Defendants violated his First Amendment rights to free speech and the free exercise of his religion, and his Fourteenth Amendment right to equal protection, by implementing an outreach policy to the lesbian, gay, bisexual, transgender, and queer (“LGBTQ”) community that included the use of a specialty LGBTQ flag and officer uniform patch, and the creation of a LGBTQ advisory board and liaison position….

The district court properly dismissed Sangervasi’s free speech and free exercise claims because Defendants were engaging in government speech and Sangervasi was speaking as a government employee. See Pleasant Grove City, Utah v. Summum (2009) (recognizing that Free Speech Clause does not regulate government speech, and that a government entity is ultimately accountable to electorate and political process for its advocacy); Garcetti v. Ceballos (2006) (recognizing that government as an employer can restrict speech by public employees made pursuant to their professional responsibilities)….

(Sangervasi was fired, possibly because of this controversy, but his federal lawsuit isn’t challenging the firing.)

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