After two years of court battles, a police officer fired for selling videos on the Internet of himself masturbating won a precedent-setting victory in court last week. On Oct. 26, 2001, former San Diego Police Officer Luis Acevedo filed a lawsuit in Federal Court under the name John Roe, claiming the City of San Diego, the San Diego Police Department and Chief of Police David Bejarano violated his right to free speech when they fired him for selling the videos through the online auction site eBay.

Last week the San Francisco-based Ninth Circuit Court of Appeals agreed with Acevedo that his dismissal by the San Diego Police Department in 2001 was unjust because his off-duty actions were protected by First Amendment rights to free speech, sending the case back to district court for further litigation.

Acevedo was fired from the police department in June 2001 for unbecoming conduct, immoral conduct, and for violating the department’s outside employment policy after it was discovered that he was selling clothing items and videos of himself in the Mature Audiences section of the online auction site eBay under the username “Code3Stud.” Sergeant Robert Dare of the SDPD discovered Acevedo’s auctions for men’s briefs and a video of himself masturbating under that username and recognized Acevedo in a picture from the video.

In a suit filed with federal court, Acevedo claimed that after Dare brought the auctions to the attention of the department, police operatives purchased a pair of men’s briefs and a video of himself through the site. The lawsuit went on to claim operatives contacted Acevedo via e-mail to request a custom video and instructed him to act out a scene with another man, asking for Acevedo to be “pretending that you (Acevedo) are giving him a ticket” and then to “strip down while writing the ticket and make him a deal to take it back, which would end up with you cumming all over him.”

A Professional Standards Unit investigation report filed in December, 2000, found Acevedo in violation of three separate department policies and ordered him to “cease displaying, manufacturing, distributing or selling any sexually explicit materials or engaging in any similar behaviors via the Internet, U.S. mail, commercial vendors or distributors, or any other medium available to the public.” Acevedo complied with the order, but in February, 2001, an operative from the San Diego Police Department returned to the eBay web site to see if Acevedo had participated in any new auctions. Although there were no new auctions listed under Acevedo’s username, the profile still existed listing descriptions of Acevedo’s auctions and sales before the department order.

Acevedo was accused of being in violation of the department’s orders and his employment was terminated on June 29, 2001, even though he received a satisfactory performance evaluation for that time period as well as a letter of commendation.

In a Dec. 2001 court decision, Judge Judith Keep dismissed the case, saying it failed to meet the Connick “public concern” test for protected free speech. The test states that in order for a government employee’s speech to be protected it must be of a matter of public concern and if so, “the employee must show that his interest in commenting upon matters of public concern outweighs any adversely affected interest of the city in promoting efficient delivery of public services.”

Judge Keep went on to say in her decision, “The Court cannot see, and Plaintiff has not shown, how the production, marketing and sale of sexually explicit videos for commercial profit is a matter of public concern for purposes of the Connick ‘public concern’ test.”

Keep did clear the way for Acevedo to continue the appeals process in a separate court decision by allowing him to proceed with the case under the pseudonym “John Roe” to protect his identity, despite the fact that his name had already been leaked to the media by an unknown source.

In the Ninth District Circuit Court, which covers California, Alaska, Washington, Oregon, Nevada, Arizona, Idaho, Montana, Hawaii and Guam, Acevedo’s attorney, Michael Baranic argued the Flanagan “protected expression” test as a basis for the appeal. The protected expression test was first used in the case of Flanagan v. Munger, in the 10th District Circuit Court of Appeals and found that the “public concern” test was “nearly impossible to logically apply” to a case where an employee engages in a protected form of nonverbal expression while away from work.

In Flanagan v. Munger two police officers who were partial owners of a video rental store that carried sexually explicit videos were reprimanded for conduct unbecoming, however the court found it difficult to understand how the officers were saying anything explicitly or implicitly through their part ownership of the store.

In a 43-page ruling the three-judge panel of the Ninth District Court of Appeals ruled 2-1 in favor of Acevedo saying, “We hold that when the employee’s speech is not about his government employer or employment, is directed to a segment of the general public and occurs outside the workplace, that speech satisfies the public concern test.”

Judge Kim Wardlaw, dissenting from the three-judge panel, called the decision absurd, saying Acevedo’s actions were not free speech but conduct violations related to his job.

Penny Castleman with the City Attorney’s office, who represented the City of San Diego and the San Diego Police Department in the lawsuit, and who argued the case over a year ago, said, “The decision was not obviously entered into lightly, by the fact that it was 2-1 and it was very heartfelt on both sides. I think there was a lot of debate that went into it. It’s clear that they wrestled with a lot of tough issues.”

The decision sends the case back to the district court, where it will be litigated to see if Acevedo’s speech was protected. Acevedo’s attorneys will have to prove that the free speech interests in his expressive activity must be weighed against the police department’s interest “in promoting the efficiency of the public services it performs through its employees.” Alternatively the police department can prevail on Acevedo’s First Amendment claim if it proves that it would have terminated Roe regardless of his expression.

Regardless of whether Acevedo prevails at the district court level, the ruling did set a new precedent that effects government employees throughout the Ninth Circuit.

“The Ninth Circuit expanded the public concern test beyond what it had traditionally been,” Castleman explained. “Basically, they’ve said now any expressive activity comes within public concern if it’s expressed to a member of the public.

“One of the requirements was that you show that you have a public audience. Now they’ve expanded it, because he doesn’t even have to show that there was a public audience. If [the tapes] were available to the public audience, even if no one ever bought them, they would still be available to members of the public, so that would be a public audience.”

No trial date has been set for further arguments, and Acevedo’s attorney could not be reached for comment at press time.