PHOENIX — A Phoenix police sergeant under investigation for allegedly violating the department's social media policy filed a lawsuit on Thursday against the city and the department's police chief.
The lawsuit stems from an internal department investigation, which flagged Sgt. Juan Hernandez by the Phoenix Police Department's Professional Standards Bureau. The review looked at hundreds of social media posts from officers in Phoenix, and several other cities, after the Plain View Project released a nationwide database flagging thousands of questionable Facebook posts.
The project’s director, Emily Baker-White, found posts that seemed racially-biased, misogynistic, Islamophobic, or appeared to promote officer aggression and vigilante justice.
Following the release, Phoenix police officials said they would review all the posts red-flagged by The Plain View Project to determine if any misconduct existed within their ranks. In all, 75 Phoenix officers had Facebook posts or comments flagged.
On June 5, Hernandez received a notice of investigation, alleging he had violated the department's social media policy. On June 20, Hernandez was interviewed as part of the internal investigation. The federal civil lawsuit filed by Hernandez claims the interview only focused on four of Hernandez's Facebook posts. Hernandez claims he was "simply reposting content that he felt involved matters of public concern."
Hernandez was notified on October 2 that a discipline review board would review the results of the internal investigation and submit discipline recommendations to Chief Jeri Williams.
In the lawsuit, Hernandez claimed his first amendment right to free speech was violated as a result of the investigation, and that he suffers a chilling effect on his right to speak regarding matters of public concern.
The lawsuit claims the investigation is 'illegal' and 'incompetent.'
"Police officers, just like you and me, have first amendment rights to talk on certain subjects," said Hernandez's attorney, Steve Serbalik. "It's guaranteed by the U.S. constitution. It's guaranteed by the Arizona constitution."
Some of the social media posts in question involve links Hernandez shared, according to the lawsuit. One has the caption "The most common name for a convicted gang rapist in England is...Muhammad."
"He wanted to spark conversation with his friends and family about topics like that," Serbalik said. "Something that was being widely covered in the news at the time."
Serbalik claims Hernandez didn't even comment on links he shared and was simply trying to drive conversation.
In the lawsuit, documents purportedly part of an internal investigation by Phoenix Police note "Sergeant Hernandez' Facebook posts contained insensitive language and could potentially spread fear and hatred towards people of Middle Eastern descent, as well as those practicing the Muslim faith."
The lawsuit claims the police department policy is "unconstitutional." Among other things, the lawsuit seeks a preliminary injunction, noting the belief the case could go before a Discipline Review Board next week. The discipline review board is set to consider the findings of the investigation on October 15.
ABC15 asked Hernandez's attorney how he would respond to people who look at some of these types of social media posts and lose trust in the department.
"I definitely think that we should do what we can to work together with the community to build trust," Serbalik said. "I think that part of building that trust is to understand that police officers, just like the rest of us, are people. Police officers, just like the rest of us, have opinions, and police officers, just like the rest of us, have a first amendment right to express their opinions on matters that are of public concern."
A Phoenix Police Department spokesperson declined to discuss specifics of the case citing pending litigation, but provided the following general information with how Phoenix police handle internal investigations:
Claims of wrong-doing by members of the department are referred to the department’s Professional Standards Bureau (PSB). The role of PSB is to investigate the allegations and determine if there was employee misconduct.
PSB can refer cases to the Disciplinary Review Board (DRB). This panel listens to the evidence and makes a recommendation for discipline to the Chief of Police. That discipline can range from supervisory counseling, written reprimands, suspensions (up to six weeks unpaid) , demotion, or termination. The DRB is chaired by one of the department’s Assistant Police Chiefs with six additional members including two peer officers, two civilian community members, and two police commanders. The sworn and civilian panel participating in a specific case are chosen randomly from a previously vetted pool.
The DRB makes a recommendation for discipline to the police chief, who reviews the findings and decides what disciplinary action to take. The disciplined employee still has a right to appeal the decision. An appeal may go to the Civil Service Board. This five-member panel is made up entirely of civilian community members appointed by the City Council. That group can either agree with or reduce the level of discipline. This group has the power to reinstate a terminated employee.