ACLU Challenges Flint Police Chief’s Gag Rule

August 27, 2008

DETROIT — The American Civil Liberties Union of Michigan filed a federal lawsuit today on behalf of three Flint police officers challenging Acting Police Chief David Dick’s new gag rule banning police officers from speaking to the media. The ACLU argues that the gag rule violates their First Amendment rights because it prevents officers from speaking out to the press about matters of public importance in their private capacity as citizens.

Last week, one of the ACLU’s clients, Sgt. Richard Hetherington, was terminated for violating the gag rule when speaking to the media as a private citizen. While the city has since rescinded Hetherington’s termination, it has not rescinded the gag rule. In July, the ACLU of Michigan wrote a letter asking the police chief to rescind the unconstitutional policy. More than a month after this request, the rule remains in effect and continues to prevent officers from speaking to the press about issues of public concern. 

“It is unfortunate that the police chief would rather drag his city through lengthy and expensive court proceedings than uphold the Constitution,” said Kary L. Moss, ACLU of Michigan Executive Director. “By ignoring our previous attempts to resolve this issue amicably and out of court, the police chief has thumbed his nose at the Constitution and exhibited a blatant disregard for the best interest of his force and the residents he has sworn to protect.”

In June, following the controversial appointments of Police Chief David Dicks and Super Chief Richard Dicks, as a father and son team, and David Forystek as deputy police chief, the Flint Journal sought comment from reputable leaders in the Flint Police Department, including union presidents Hetherington and Lt. David Winch.

Shortly after Hetherington made comments to the media, Police Chief Dicks implemented a policy that all officers were required to sign.  The policy stated that "[n]o member of the department shall speak to or release any information regarding the department and/or its employees to the news media." Subsequently, Hetherington was suspended for two days, Winch was given a verbal warning not to speak to the media and Sgt. Lee Ann Gaspar stopped speaking to the press on a weekly basis as she had done before the gag rule was instituted. Last week, Hetherington was fired from the department for comments he made to the media. Two days later and after media reports circulated, he received a hand-delivered letter stating that the decision to terminate him had been rescinded.

Today’s lawsuit was filed in U.S. District Court Eastern District of Michigan on behalf of Hetherington, Winch and Gaspar.  All three argue that the gag rule has had a chilling effect on their speech. They say that the police chief’s threats of discipline and termination have forced them to decline press interviews on a number of issues of public importance such as the labor disputes surrounding the controversial appointments to lead the police department and their concerns that the large number of layoffs on the force is a threat to public safety.

The lawsuit asks the court to strike down the policy as unconstitutional and award Hetherington and Winch an unspecified amount in damages.

In 2003, the ACLU of Michigan won a similar case on behalf of Frenchtown Township Firefighters Union when a federal judge struck down a policy forbidding firefighters to speak to the media unless they first received the fire chief’s permission. The Court held that the rule violated the firefighters’ free speech rights regarding matters of public concern.  

Chief Dicks’ gag rule on police officers is the second controversial policy, which has drawn criticism from the ACLU.  The ACLU has also blasted his policy of stopping, searching and threatening men with the crime of disorderly conduct merely because they are wearing sagging pants.

Sgt. Gaspar, Sgt. Hetherington and Lt. Winch are represented by Moss and ACLU Cooperating Attorneys, Greg Gibbs, Sarah Zearfoss, Jeanmarie Miller and Muna Jondy as well as ACLU of Michigan Legal Director Michael J. Steinberg.

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