By Ann McAdams | July 13, 2020 at 3:25 PM EDT – Updated July 13 at 3:25 PM
WILMINGTON, N.C. (WECT) – One of the three Wilmington police officers fired for his role in a racist conversation recorded on a police camera is appealing to get his job back. An attorney representing former Officer James Brian Gilmore filed notice of appeal with the city earlier this month.
In the letter, signed by Gilmore and written to The Wilmington Civil Service Board, the fired officer seeks to explain the comments he made in the fateful conversation recorded at 7:35 a.m. the morning of June 3. Gilmore said he pulled his patrol car alongside Officer Kevin Piner’s vehicle to get help with his police computer, which he noted he had been having trouble with since cameras were installed. The conversation between the two men was inadvertently recorded, and later discovered by a supervisor conducting a routine audit of police videos.
“Officer Piner had just learned of a sergeant who was killed in another jurisdiction during a riot after he was shot in the head and it turned the conversation towards the protests, which is a matter of public concern,” the appeal reads. The emphasis on the “public concern” is legally significant, and likely connected to Piner’s legal strategy for attempting to get his job back.
The Supreme Court defines public concern as “relating to any matter of political, social, or other concern to the community” or “is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.”
This type of speech enjoys broader protection than other types of speech under the First Amendment.
According to Cornell Law School’s Legal Information Institute, the public concern concept is an important consideration for a public employee’s right to free speech. According to their literature on the issue, an employee’s constitutionally protected right to talk about matters of public concern is nuanced, and depends in part on whether the statement in question is connected to the employee’s official duties.
The article notes a famous line from Justice Oliver Wendell Holmes, who noted, “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” The courts have recognized public employees’ right to free speech, but also the State’s interest as an employer in regulating the speech of employees and “promoting the efficiency of the public services it performs through its employees.”
A WPD Internal Affairs investigation found Gilmore did not violate Wilmington police policies for Standard of Conduct, Criticism, and Use of Inappropriate Jokes and Slurs, while they found that two fellow officers involved in the recorded conversations did violate those policies. However, WPD Chief Donny Williams overruled the IA determination, and found Gilmore guilty of a Standard of Conduct Violation for behavior that reflected unfavorably on the department. Gilmore was then terminated.
While fellow officers Kevin Piner and Jesse Moore were reportedly recorded using racist terms and calling for violence against black people, Gilmore says his comments were of a different nature. He discussed his concern with a video he had seen on social media of white people “bowin’ on their knees – chanting about worshiping blacks” and a video with a “fine looking white girl and a punk little pretty boy, bowing down kissing their toes.”
“The Holy Bible teaches that no one should bow down before another human being or idol and worship them,” Gilmore explained in his appeal letter. “This conversation was about the Black Lives Matter protesters and was not racially motivated but expressed my personal opinions, based on my religious beliefs.”
“[T]he conversation, while on duty, was not made pursuant to my official duties, and my conversation was not directed towards any other employee of the WPD. Therefore, I believe my speech is protected by the First Amendment of the United State Constitution and my termination is without cause,” Gilmore concluded.
If Gilmore can convince the Civil Service Board his comments were not connected to his official duties, that could help his case. The Cornell site notes an arguably more egregious statement made by another public employee that the courts protected:
“In Rankin v. McPherson the Court held protected an employee’s comment, made to a co-worker upon hearing of an unsuccessful attempt to assassinate the President, and in a context critical of the President’s policies, ‘If they go for him again, I hope they get him.’ Indeed, the Court in McPherson emphasized the clerical employee’s lack of contact with the public in concluding that the employer’s interest in maintaining the efficient operation of the office (including public confidence and good will) was insufficient to outweigh the employee’s First Amendment rights.”
The Cornell article indicates that even if the speech in question occurs when a public employee is on duty, it may still be protected under the First Amendment.
We have been unable to reach Officer Gilmore for comment since his termination. A call to the attorney handling his appeal, Barry Henline, was not immediately returned.
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