A federal appeals court has upheld a Howard County fire battalion chief’s firing, saying that any free-speech right he had to criticize gun control and his bosses was trumped by the need for good order and discipline in the fire department.
In a 3-0 decision, the 4th U.S. Circuit Court of Appeals said Kevin P. Buker was commenting on matters of public concern when, on his personal Facebook page in January 2013, he criticized liberal politicians’ support of banning assault weapons by stating that liberals would perhaps be outlawed if someone were to use one to beat another liberal to death.
Buker also was exercising his constitutional First Amendment right to free speech when, just days after being ordered to remove that post, he posted another message saying that only liberals can speak freely in Howard County, the 4th Circuit said. The Constitution would also normally protect his constitutional right to “like” a volunteer firefighter’s post illustrated by a woman raising a middle finger and stating that one should be able to post whatever they desired, the 4th Circuit added.
But Buker was working for a governmental agency tasked with protecting public safety and operating under a clear chain of command, akin to the military, the 4th Circuit said. Buker himself had firefighters under his command, the appellate court noted in holding that the First Amendment must yield.
“For several reasons, we conclude that the department’s interest in efficiency and preventing disruption outweighed plaintiff’s interest in speaking in the manner he did regarding gun control and the department’s social-media policy,” Judge James A. Wynn Jr. wrote in the court’s published opinion Monday.
Buker’s Facebook activity “interfered with and impaired” the department’s operations, discipline and working relationships, Wynn said. The posts also “frustrated the department’s public safety mission and threatened community trust in the department, which is vitally important to its function,” the judge added.
“Fire departments operate as ‘paramilitary’ organizations in which ‘discipline is demanded, and freedom must be correspondingly denied,’” Wynn wrote, quoting from the 4th Circuit’s 1992 decision in Maciariello v Sumner. “Accordingly, we afford fire departments ‘greater latitude … in dealing with dissension in their ranks.’”
However, firefighters’ First Amendment claims must be considered on a case-by-case basis, the court added.
“Therefore, although we resolve the balancing test in favor of the department, we expressly caution that a fire department’s interest in maintaining efficiency will not always outweigh the interests of an employee in speaking on matters of public concern,” Wynn wrote.
Chief Judge Roger L. Gregory and Judge Stephanie D. Thacker joined Wynn’s opinion affirming U.S. District Judge Marvin J. Garbis’ grant of summary judgment for Howard County and its fire department.
Buker had sued for wrongful termination, claiming that his firing was in violation of his First Amendment right to free speech.
County spokesman Mark S. Miller declined to comment Friday on the court’s decision, saying it remains subject to potential appeal by Buker.
Buker’s attorney, Edward S. Robson, did not return telephone and email messages seeking comment Friday afternoon on the decision and a potential appeal. Robson is with Robson & Robson PC in King of Prussia, Pa.
The 4th Circuit issued its decision in Kevin P. Buker v. Howard County et al., No. 15-2066.