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Justices show interest in ex-Md. officer’s First Amendment appeal

The U.S. Supreme Court has shown interest in hearing a former Maryland Natural Resources Police officer’s claims he was fired in retaliation for exercising his constitutional right to speak in criticizing an MNRP captain’s behavior and denied his statutory right to carry a gun as a retired law enforcement officer.

The high court this week told the Maryland attorney general’s office to respond to Norris Carey Jr.’s request that the justices review and overturn a lower court ruling dismissing his claims. The office had waived its right to respond unless the justices specifically requested a response.

The state’s response is due Nov. 18.

The Supreme Court has not stated when it will vote on Carey’s request for its review. The case is docketed at the high court as Norris Paul Carey Jr. v. Joanne Throwe et al., No. 20-351.

Carey is appealing the 4th U.S. Circuit Court of Appeals’ affirmance of the dismissal of his claim that he was fired because of his online comments that Capt. Edward Johnson had violated the agency’s code of conduct by allegedly mocking gun violence and having photographs of scantily clad women on his Facebook page.

The 4th Circuit said Carey’s comments did not constitute protected speech under the First Amendment because they concerned his personal grievance with Johnson and not a matter of public concern.

The 4th Circuit also upheld the dismissal of Carey’s claim of a right to gun ownership under the Law Enforcement Officers Safety Act, saying the federal law gives state’s discretion regarding whether a retired police officer can possess a firearm.

In his pending petition for Supreme Court review, Carey argued through counsel that his criticism of Johnson – a ranking police officer – for “making light of gun violence” and for “misogynistic behavior” was not personal animus but commentary on issues of public importance, warranting First Amendment protection from retaliation.

“On a larger sense, the content of Mr. Carey’s posts invokes the public’s omnipresent interest in the character of public officials,” Carey’s attorney, Robin R. Cockey, wrote to the high court.

“From the Reynolds pamphlet and the Teapot Dome scandal to modern day scandals involving President Clinton and Anthony Wiener, the American public has always found the character of our public officials to be of significant importance,” added Cockey, of Cockey, Brennan & Maloney PC in Salisbury. “Certainly the content of Mr. Carey’s posts calling out the misbehavior and questionable character of an armed public official is of interest to a public that relies on such an individual for its safety.”

Cockey added that the LEOSA is nondiscretionary, affording qualified retired police the statutory right to own guns. By denying that right to Carey, the state violated federal law, Cockey added in urging the justices to hear the appeal and send Carey’s claims back for trial.

The litigation began in January 2018 when Carey sued the state Department of Natural Resources in U.S. District Court in Baltimore, alleging he was fired and denied his LEOSA gun license in retaliation for having exercised his First Amendment right to criticize the police chief.

Carey had written two anonymous blog posts on the Salisbury News website in December 2016 and January 2017 alleging Johnson did not follow the department’s code of conduct.

Carey, who was later revealed as the blogger, cited Johnson’s alleged Facebook post of a human skull with a bullet hole and the captain remarking that it had a “45 caliber” headache. Carey also wrote that Johnson was “denigrating law enforcement and fanning the flames of an already hostile environment that needs healing.”

U.S. District Judge George L. Russell III dismissed Carey’s lawsuit in 2019, saying his comments about Johnson addressed personal and not public concerns and that the state acted within its discretion in not permitting Carey to have a firearm license under the LEOSA.

The 4th Circuit affirmed the dismissal in a published 3-0 decision in April that distinguished between personal grievances and public concerns.

Carey’s posts “show Johnson’s behavior to be boorish, tasteless, and boastful,” Judge J. Harvie Wilkinson III wrote for the 4th Circuit.  “But neither post impeaches Johnson’s conduct of his professional duties or raises a matter of public interest. Rather, at bottom, they simply add up to an airing of personal grievances, and an expression of Carey’s (no doubt correct) belief that Johnson’s off-duty conduct was unbecoming of an MNRP officer.”

Wilkinson added that “the private boorishness of a public employee, without more, does not rise to a constitutionally cognizable matter of public concern.”

Wilkinson was joined in the opinion by Judges Barbara Milano Keenan and Rossie D. Alston Jr., a judge on the U.S. District Court for Eastern Virginia who was sitting by designation.

The 4th Circuit rendered its decision in Norris Paul Carey Jr. v. Maryland Natural Resources Police et al., No. 19-1194.

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