A federal appeals panel heard arguments Tuesday on whether a former Capitol Police sergeant, Officer Jodi Breiterman, should have been suspended and later demoted for sending to the media a photo of a loaded gun that another officer left in a bathroom.
In early 2015, Breiterman responded to an incident in which a congressional staffer found a Capitol Police officer’s gun left unattended in a Capitol Visitor Center bathroom. She photographed the gun, which was stuffed into a toilet cover dispenser, with her work phone and later shared the image and information with Roll Call. The officer who left their gun was suspended for six days without pay.
Breiterman alleges she was discriminated against by the department because of her gender and endured retaliation for sharing with the media the photo of the Capitol Police officer’s unattended gun.
U.S. District Judge Timothy J. Kelly ruled on Sept. 4 that the Capitol Police did not engage in unlawful gender discrimination against Breiterman. Tuesday’s hearing before three judges on the U.S. Court of Appeals for the District of Columbia Circuit allowed both sides to argue whether Kelly’s decision to not proceed to trial should be reversed. Judges Laurence H. Silberman, Neomi Rao and Robert L. Wilkins heard the arguments.
Kelly Scindian, counsel for the Capitol Police, argued the department was right in disciplining Breiterman and said the officer was not protected under the First Amendment because she obtained the information through her official duties and, as a result, was speaking as an employee of the department rather than as a private citizen.
Silberman posed a hypothetical question asking what the Capitol Police’s stance would be if Breiterman, instead of going to the press, volunteered to testify before Congress because the incident had been disclosed in another way and she thought the issue of officers leaving unattended guns was a systemic problem that could be injurious.
“Wasn’t your position so extreme that you could punish her for that?” Silberman asked Scindian.
“Potentially yes, Your Honor,” Scindian replied, noting that there would be an issue if Breiterman sent a letter to Congress that disclosed information from what she found as part of a department investigation.
“She [Breiterman] does not have the authority to disclose that information. The department determines who that information goes to,” Scindian added.
Silberman followed up by asking what the department’s position would be if Breiterman reported the gun issue up through her chain of command and superiors told her it was insignificant.
“Is she then still forbidden from going to the public or Congress?” Silberman asked.
“To be clear, what she’s forbidden from doing here is revealing evidence and information she gathered as part of an investigation that she was directed to gather,” Scindian said.
When Wilkins raised the subject of Capitol Police officers speaking to the media about Jan. 6, Scindian said those communications are protected.
“What they’re speaking about is their opinions as to the department’s successes and or failures. That’s what they’re speaking about,” Scindian said. “They’re not describing specific information or, you know, releasing work product that they created on behalf of the department. That they’ve not been permitted to do.”
At issue in Breiterman’s situation is whether, in disclosing the photo of what she was tasked by the Capitol Police to investigate, she was speaking as a private citizen or as an employee of Capitol Police.
In the Supreme Court case Garcetti v. Ceballos, the court held that a government employee was not protected by the First Amendment when Ceballos disclosed a memo on an issue he was assigned to investigate.
“In this photo that was disclosed, isn’t it completely akin to the memo that was disclosed by the prosecutor in Garcetti and, therefore, outside the protection of the First Amendment?” Wilkins asked.
Anita Mazumdar Chambers argued that Breiterman’s situation was distinguishable from that of Garcetti.
Chambers said that other officers took a photo of the gun and that the bathroom where the gun was left was in a publicly accessible space.
“Anyone who had access to that bathroom could have taken that photo, could have viewed that photo. And so, in that way, the actual subject matter is distinguishable from that of Garcetti,” Chambers said.
The Capitol Police declined to comment. Chambers, counsel for Breiterman, declined comment.