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Frosh urges justices to decline ex-Md. officer’s First Amendment appeal

Attorney General Brian E. Frosh (File)

Maryland Attorney General Brian E. Frosh urged the U.S. Supreme Court to not hear the case of a former state Natural Resources Police officer who claims he was fired in retaliation for criticizing an MNRP captain’s behavior and has been denied the right to carry a gun as a retired law enforcement officer. (File)

Maryland’s attorney general Wednesday urged the U.S. Supreme Court not to hear a former state 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.

In papers filed with the justices, Brian E. Frosh stated that Norris Carey Jr.’s online criticism of the officer was a personal vendetta and not constitutionally protected commentary on a matter of public concern. Frosh also rejected Carey’s argument that police officers have a statutory right to remain armed after they retire.

Frosh’s filing followed Carey’s request that the justices review and overturn 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.

Carey is also appealing the dismissal of his claimed right to gun ownership under the federal Law Enforcement Officers Safety Act.

The 4th U.S. Circuit Court of Appeals affirmed the trial judge’s dismissal in April, saying, as Frosh did, that Carey’s animus-motivated comments did not implicate the First Amendment right to free speech and that the federal law gives states discretion regarding whether a retired police officer can possess a firearm.

Pressing the justices to let the 4th Circuit’s decision stand, Frosh stated that not every criticism of a person holding a position of public trust addresses a matter of public concern, particularly in the social media age.

“As the 4th Circuit observed, no authority stands for the proposition that speech relates to a matter of public concern simply because it involves a public official,” Frosh wrote.

“Without some connection to a larger, systemic problem, a public employee’s behavior, whether on-the-job or off, does not automatically impute to his employer; otherwise, virtually anything involving a public employee would, by definition, be a matter of public concern,” Frosh added. “Even if (Carey’s critical online) posts were so popular that they were posted for a second time, the short history of social media is replete with examples of personally embarrassing photographs and salacious comments that draw wide attention, but which do not involve matters of social, political or community interest rising to the level of ‘public concern.’”

Frosh added that the Law Enforcement Officers Safety Act’s provision related to gun ownership is discretionary, not mandatory. The attorney general also argued that applying the federal law to state and local law enforcement would violate the Constitution’s 10th Amendment prohibition on the U.S. commandeering authority left to the states.

Assistant Attorney General Julia Doyle Bernhardt, Frosh’s litigation chief, is counsel of record before the high court. Assistant Attorney General Adam D. Snyder, a Bernhardt deputy, also participated in Frosh’s filing.

Frosh had waived the state’s right to respond to Carey’s request for Supreme Court review unless the justices called for a response, which they did last month. The high court did not state when it will consider Carey’s request for its review.

The case is docketed at the Supreme Court as Norris Paul Carey Jr. v. Joanne Throwe et al., No. 20-351.

In his pending petition for high 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.

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.

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 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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