# I Pit Police Chief Mark Kessler and his "Constitution Security Force" **URL:** \ **Category:** The BBQ Pit\ **Created:** [August 8, 2013, 11:00pm UTC](https://boards.straightdope.com/t/i-pit-police-chief-mark-kessler-and-his-constitution-security-force/665755 "2013-08-08T23:00:47Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 20, 2013, 9:40pm UTC](https://boards.straightdope.com/t/i-pit-police-chief-mark-kessler-and-his-constitution-security-force/665755/61 "2013-09-20T21:40:47Z")
> [@Lasciel](#): > > I know this is a hijack, and I’m sorry, but I am curious about the details on this. I live in an at-will state and work for the government, and if I recall interviews and hiring packets correctly (mine from a few years back, and all the subordinates I’ve interviewed and sat with while HR goes over the legalities), my particular bit of government seems to be under the impression that we employees can get fired for any or no reason as long as it’s not a federally-protected status thing. Is that not actually true? No, it’s not. _Portman v. County of Santa Clara_, 995 F.2d 898, 904 (9th Cir. 1993) (“A government employee has a constitutionally protected property interest in continued employment when the employee has a legitimate claim of entitlement to the job.”). The Supreme Court has spoken several times on the general issues in play in this type of First Amendment defense. But the seminal case remains _Pickering v. Board._ In 1968, The Supreme Court considered the case of teacher Marvin L. Pickering, who wrote a letter to the editor of his local paper critical of his school system’s handling of a bond issue and of the superintendent’s attempts to suppress criticism. Pickering was fired. But the case went all the way to the Supremes, who said, “In sum, we hold that, in a case such as this, absent proof of false statements knowingly or recklessly made by him, a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment.” There’s plenty more detail if anyone is interested, and this isn’t exactly my area of law – but I assure you that government, as an employer, is not free to fire you the same way a private employer is… even in an “at will” state. ---
**Author:** ![Inigo\_Montoya](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/inigo_montoya/32/124_2.png) [@Inigo\_Montoya](https://boards.straightdope.com/u/Inigo_Montoya)\ **Post date:** [September 20, 2013, 10:10pm UTC](https://boards.straightdope.com/t/i-pit-police-chief-mark-kessler-and-his-constitution-security-force/665755/62 "2013-09-20T22:10:09Z")
> [@BrainGlutton](#): > > :o You all know I’m **not** illiterate, just a sometimes-clumsy typist. Mods, please edit thread title? “Security,” not “Seciuity”. Epic Gaudere’s Law. 😃 ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [September 20, 2013, 10:29pm UTC](https://boards.straightdope.com/t/i-pit-police-chief-mark-kessler-and-his-constitution-security-force/665755/63 "2013-09-20T22:29:06Z")
> [@Lasciel](#): > > I know this is a hijack, and I’m sorry, but I am curious about the details on this. I live in an at-will state and work for the government, and if I recall interviews and hiring packets correctly (mine from a few years back, and all the subordinates I’ve interviewed and sat with while HR goes over the legalities), my particular bit of government seems to be under the impression that we employees can get fired for any or no reason as long as it’s not a federally-protected status thing. Is that not actually true? In addition to what Bricker said. Although the government has a freer hand in regulating the speech of its employees than it has in regulating the speech of the public at large, _Waters v. Churchill_, 511 U.S. 661, 671, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994), public employees do not lose their rights as citizens to participate in public affairs by virtue of their government employment.\* Connick v. Myers\*, 461 U.S. 138, 144 45, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). In recognition that [g]overnment employees are often in the best position to know what ails the agencies for which they work, _Waters,_ 511 U.S. at 674, 114 S.Ct. 1878, the First Amendment may prohibit government retaliation against employee speech that touches matters of public concern. _Connick_, 461 U.S. at 146, 103 S.Ct. 1684; see also _Weeks v. Baye_r, 246 F.3d 1231, 1235 (9th Cir.2001) (describing First Amendment doctrine as based on the principle that public employees should be encouraged to speak out about what they think and know without fear of retribution, so that citizens may be informed about the instruments of self governance) (quoting Gilbrook v. City of Westminster, 177 F.3d 839, 870 (9th Cir. 1999)). ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [September 20, 2013, 10:49pm UTC](https://boards.straightdope.com/t/i-pit-police-chief-mark-kessler-and-his-constitution-security-force/665755/64 "2013-09-20T22:49:32Z")
Bah. If your employer, whether public or private, really wants to get rid of you, they’ll find a legal pretext and a legal method. If they need to have their counsel dream one up, well, this thread just confirms that it’s not hard to do. ---
**Author:** ![Budget\_Player\_Cadet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/budget_player_cadet/32/205_2.png) [@Budget\_Player\_Cadet](https://boards.straightdope.com/u/Budget_Player_Cadet)\ **Post date:** [September 20, 2013, 11:31pm UTC](https://boards.straightdope.com/t/i-pit-police-chief-mark-kessler-and-his-constitution-security-force/665755/65 "2013-09-20T23:31:02Z")
> [@Bricker](#): > > **Kimballkid** : if the chief had posted videos discussing how valuable Obamacare is, and the city council hated Obama, would they still be free to fire him for posting what they thought were stupid videos? _headdesk_ Honestly, the problem is not that he’s pro-second-amendment. Hell, he could support it to the interpretation that he thinks it’s A-OK for each citizen to own their own personal nuclear warhead. The problem is that _he looks like a complete fucking lunatic and is making a fool out of his town_. If an employee at a company made a youtube account where he showed off his dick, put on a Klan hood, and started shouting about how the Jews and Gays were ruining whitey’s America, I’d think nothing of him being fired because _having him representing you is a liability and an embarrassment_. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 21, 2013, 12:25am UTC](https://boards.straightdope.com/t/i-pit-police-chief-mark-kessler-and-his-constitution-security-force/665755/66 "2013-09-21T00:25:54Z")
> [@Budget\_Player\_Cadet](#): > > _headdesk_ > > Honestly, the problem is not that he’s pro-second-amendment. Hell, he could support it to the interpretation that he thinks it’s A-OK for each citizen to own their own personal nuclear warhead. The problem is that _he looks like a complete fucking lunatic and is making a fool out of his town_. If an employee at a company made a youtube account where he showed off his dick, put on a Klan hood, and started shouting about how the Jews and Gays were ruining whitey’s America, I’d think nothing of him being fired because _having him representing you is a liability and an embarrassment_. I agree. But the issue is not “I have a right to post a video and the town has no right to fire me.” The issue is, as your summation correctly intuits, does the specific video create the kind of concern that supports termination? And it obviously does. But it has nothing to do with Pennsylvania being an “at will” state. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [September 21, 2013, 1:16am UTC](https://boards.straightdope.com/t/i-pit-police-chief-mark-kessler-and-his-constitution-security-force/665755/67 "2013-09-21T01:16:06Z")
> [@Bricker](#): > > I agree. But the issue is not “I have a right to post a video and the town has no right to fire me.” The issue is, as your summation correctly intuits, does the specific video create the kind of concern that supports termination? > > And it obviously does. > > But it has nothing to do with Pennsylvania being an “at will” state. As a police officer there is a good chance that he has an employment contract which throws the whole at will thing out the window. But as a chief he may not. Chiefs are often hired under different rules than the rank and file. ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [September 22, 2013, 6:23pm UTC](https://boards.straightdope.com/t/i-pit-police-chief-mark-kessler-and-his-constitution-security-force/665755/68 "2013-09-22T18:23:53Z")
> [@Great\_Antibob](#): > > Of course - with the stipulation it doesn’t violate any existing employment laws or terms of an employment contract. Why wouldn’t they? > > Is this, as it appears, some kind of transparently bad sort of gotcha? It’s transparently bad in that there is an obvious difference between the scenarios. A police chief posting a video urging people to disregard the rule of law if they want to avoid tyranny is, like a McDonald’s employee urging people to eat at Burger King if they want to avoid salmonella, directly undercutting the service for which he has been hired. This issue applies to the actual videos, but not to the posited hypothetical ones. If we want to argue from a more apropos hypothetical (i.e. Should he have been fired if his videos exhorted the viewer to hang the 1-percenters from lampposts and seize Power For The People?), the answer is obviously, yes, he should have been fired for that as well. ---
**Author:** ![Boggette](https://avatars.discourse-cdn.com/v4/letter/b/858c86/32.png) [@Boggette](https://boards.straightdope.com/u/Boggette)\ **Post date:** [September 23, 2013, 12:14pm UTC](https://boards.straightdope.com/t/i-pit-police-chief-mark-kessler-and-his-constitution-security-force/665755/69 "2013-09-23T12:14:02Z")
I live in his county. I am liberal. My first thought should not be “don’t call the sherriff” if I need help because he might shoot my 'libtard ass". ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 23, 2013, 1:10pm UTC](https://boards.straightdope.com/t/i-pit-police-chief-mark-kessler-and-his-constitution-security-force/665755/70 "2013-09-23T13:10:08Z")
> [@Steve\_MB](#): > > It’s transparently bad in that there is an obvious difference between the scenarios. A police chief posting a video urging people to disregard the rule of law if they want to avoid tyranny is, like a McDonald’s employee urging people to eat at Burger King if they want to avoid salmonella, directly undercutting the service for which he has been hired. This issue applies to the actual videos, but not to the posited hypothetical ones. Correct, which is precisely the point I’m making. It’s not correct to say that the town has the freedom to fire the chief for making videos. It’s correct to say that they have power to fire him for bringing his ability to do his job correctly into question, which he did. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [September 23, 2013, 5:22pm UTC](https://boards.straightdope.com/t/i-pit-police-chief-mark-kessler-and-his-constitution-security-force/665755/71 "2013-09-23T17:22:49Z")
I think the town has the freedom to fire him for making videos. Why are you against freedom? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 23, 2013, 5:43pm UTC](https://boards.straightdope.com/t/i-pit-police-chief-mark-kessler-and-his-constitution-security-force/665755/72 "2013-09-23T17:43:22Z")
> [@YogSosoth](#): > > I think the town has the freedom to fire him for making videos. Why are you against freedom? I hate freedom with a passion, and desire that all of you labor beneath my cruel lash. But that’s not really the point. The point is that while a private employer does indeed have the freddom to do as you suggest, when the government is the employer it must observe certain constitutionally-derived limits on the reasons for firing someone. Question me more if you wish, but be mindful of the lash. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [September 23, 2013, 7:14pm UTC](https://boards.straightdope.com/t/i-pit-police-chief-mark-kessler-and-his-constitution-security-force/665755/73 "2013-09-23T19:14:39Z")
> [@Boggette](#): > > I live in his county. I am liberal. My first thought should not be “don’t call the sherriff” if I need help because he might shoot my 'libtard ass". Well, Kessler was a town police chief, not a county sheriff. Otherwise your point is well taken. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [September 23, 2013, 9:16pm UTC](https://boards.straightdope.com/t/i-pit-police-chief-mark-kessler-and-his-constitution-security-force/665755/74 "2013-09-23T21:16:22Z")
> [@Bricker](#): > > I hate freedom with a passion, and desire that all of you labor beneath my cruel lash. > > But that’s not really the point. The point is that while a private employer does indeed have the freddom to do as you suggest, when the government is the employer it must observe certain constitutionally-derived limits on the reasons for firing someone. > > Question me more if you wish, but be mindful of the lash. The limits are if they are a protected class. Making stupid videos and being an idiot = not a protected class. They could fire him if they didn’t like his shoelaces for all they want ---
**Author:** ![Strassia](https://avatars.discourse-cdn.com/v4/letter/s/e8c25b/32.png) [@Strassia](https://boards.straightdope.com/u/Strassia)\ **Post date:** [September 23, 2013, 9:25pm UTC](https://boards.straightdope.com/t/i-pit-police-chief-mark-kessler-and-his-constitution-security-force/665755/75 "2013-09-23T21:25:29Z")
> [@YogSosoth](#): > > The limits are if they are a protected class. Making stupid videos and being an idiot = not a protected class. They could fire him if they didn’t like his shoelaces for all they want But they cannot fire him for vocally supporting the wrong political party. Or writing a letter to the editor critical of their policies. A private company could. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [September 23, 2013, 10:36pm UTC](https://boards.straightdope.com/t/i-pit-police-chief-mark-kessler-and-his-constitution-security-force/665755/76 "2013-09-23T22:36:41Z")
> [@Strassia](#): > > But they cannot fire him for vocally supporting the wrong political party. Or writing a letter to the editor critical of their policies. A private company could. I’m going to go with the “stupid videos” thing 😉 ---
**Author:** ![Gedd](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gedd/32/4938_2.png) [@Gedd](https://boards.straightdope.com/u/Gedd)\ **Post date:** [September 24, 2013, 1:23pm UTC](https://boards.straightdope.com/t/i-pit-police-chief-mark-kessler-and-his-constitution-security-force/665755/77 "2013-09-24T13:23:47Z")
I have some family whom have military careers and they told me once that they could lose their job if they “dishonored the uniform,” i. e. screwed up while wearing something that showed they were in the (in their case) National Guard. Perhaps the police have a similar rule? (I didn’t watch the video, I don’t know if he was in uniform) The higher up and more visible a public job the more the rules change. Maybe when you get to Police Chief there is a “Don’t be a Jerk” clause. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 24, 2013, 3:00pm UTC](https://boards.straightdope.com/t/i-pit-police-chief-mark-kessler-and-his-constitution-security-force/665755/78 "2013-09-24T15:00:19Z")
> [@YogSosoth](#): > > The limits are if they are a protected class. Making stupid videos and being an idiot = not a protected class. They could fire him if they didn’t like his shoelaces for all they want No, they cannot. That’s what I’m trying to get through to you. When the government is your employer, they cannot fire you for not liking your shoelaces. A private company can, no question about that. But the town cannot. This is a factual statement about the law. You are not entitled to your own opinion about it’s truth. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [September 24, 2013, 3:15pm UTC](https://boards.straightdope.com/t/i-pit-police-chief-mark-kessler-and-his-constitution-security-force/665755/79 "2013-09-24T15:15:12Z")
Anybody know what the rule in the Third Circuit is on police off-duty speech? I seem to recall the Ninth Circuit upholding the firing of a police officer because he made some pornos. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [September 24, 2013, 3:26pm UTC](https://boards.straightdope.com/t/i-pit-police-chief-mark-kessler-and-his-constitution-security-force/665755/80 "2013-09-24T15:26:09Z")
Answer was easier to find than I thought: > [@](#): > > A public employee’s statement is protected activity only where (1) the employee spoke as a citizen (2) about a matter of public concern and (3) the government employer did not have an adequate justification for treating the employee differently from any other member of the general public as a result of the statement he made. > > [. . .] > > Taking into account the extent of authority entailed in the employee’s position, this balancing test considers ‘whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise. Actual disruption is not necessary provided that the speech has some potential to affect the entity’s operations. Hara v. Pennsylvania Dep’t of Educ., 492 F. App’x 266 (3d Cir. 2012) (internal citations and quotations omitted). There will be a lawsuit. Will be interesting to see who picks it up. [Previous page](https://boards.straightdope.com/t/i-pit-police-chief-mark-kessler-and-his-constitution-security-force/665755.md?page=3) [Next page](https://boards.straightdope.com/t/i-pit-police-chief-mark-kessler-and-his-constitution-security-force/665755.md?page=5)