United States Court of Appeals, District of Columbia Circuit
KRISTOPHER BAUMANN, CHAIRMAN OF THE FRATERNAL ORDER OF POLICE, METROPOLITAN POLICE DEPARTMENT LABOR COMMITTEE, APPELLANT
DISTRICT OF COLUMBIA, ET AL., APPELLEES
Argued March 19, 2015
Appeal from the United States District Court for the District of Columbia. (No. 1:09-cv-01189).
Anthony M. Conti argued the cause for appellant. With him on the briefs was Daniel J. McCartin. Gregory T. Lawrence entered an appearance.
Mary L. Wilson, Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellees. With her on the brief were Irvin B. Nathan, Attorney General at the time the brief was filed, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General.
Before: GARLAND, Chief Judge, and ROGERS and PILLARD,
Rogers, Circuit Judge
Pursuant to Metropolitan Police Department (" MPD" ) General Order 204.01, Part VI-C-1, the Chief of Police sanctioned Kristopher Baumann for releasing to the media a recording of Emergency Response Team (" ERT" ) radio communications that occurred during an incident in which a suspect exchanged gunfire with the police and barricaded himself inside a private home. The General Order does not prevent members of the MPD from speaking publicly about events like the barricade incident. Part VI-C-1, however, prohibits the public disclosure of confidential MPD information whose release may jeopardize ongoing law enforcement investigations, and two such criminal investigations related to the barricade were pending when Baumann gave the recording to reporters shortly after the incident. Baumann sued the District of Columbia and MPD officials on the ground that he was being punished for protected speech in violation of the First Amendment to the United States Constitution and the District of Columbia Whistleblower Protection Act (" DCWPA" ), and now appeals the grants of summary judgment to the defendants on his First Amendment and DCWPA claims and dismissal of his DCWPA claim against the individual defendants.
Baumann has conceded that an MPD Order requiring officers to notify MPD before releasing confidential MPD information that may jeopardize ongoing law enforcement investigations would be constitutional, as would a sanction for failing to do so. His only contention under the First Amendment is that his punishment was unconstitutional because the MPD has not shown that release of the ERT recording could or did impede any law enforcement investigation or otherwise disrupted the MPD's operations. We hold that Part VI-C-1 as applied to Baumann is sufficiently tailored temporally and in scope to enable law enforcement better to investigate criminal activity and police operations implicating police safety, and that the MPD's interests in non-disclosure outweigh Baumann's and the public's interests in releasing the recording at the time he did. Part VI-C-1 bars disclosure of confidential information only during ongoing investigations and does not otherwise bar speech about police activity, including the barricade incident. And releasing the confidential ERT recording could have harmed pending criminal investigations because it contained potentially critical information about the barricade and, only if kept confidential, could it provide a means to gauge other evidence offered by witnesses and persons involved in the incident. Baumann's statutory challenge under the pre-2010 DCWPA is unavailing for failure to identify a " protected disclosure," D.C. Code § 1-615.52(a)(6) (2001). Accordingly, we affirm.
MPD General Order 204.01 states that it is the policy of the MPD that officers " shall make available to the news media timely information pertaining to matters within the scope of the [MPD], except in those rare instances where the law enforcement process or fair administration of justice might be hampered by premature disclosure of such information." Gen. Order 204.01, Part II. Consistent with that policy, officers " may provide the basic facts, unless otherwise restricted by this General Order, concerning an event or incident of which they have sufficient knowledge, in conjunction with a Unit Official's approval, the rank of lieutenant or above." Id. Part VI-A-1. And they may, for example, generally disclose to the public " [f]actual information concerning an individual involved in an incident" and the " [c]ircumstances surrounding an incident." Id. Part VI-B-1 & 2. But the Order specifies in Part VI-C that certain information cannot be released to the public on an officer's own initiative. In particular, Part VI-C-1 prohibits the disclosure of " [c]onfidential information that may jeopardize the successful conclusion of an investigation." Likewise, Part VI-C-7 states that " [a]ll documents not listed as releasable shall be closed to public inspection."
Kristopher Baumann is an MPD police officer who was serving full time as Chairman of the Fraternal Order of Police Metropolitan Labor Committee (" union" ) on May 30, 2009, when the ERT was called to the scene of a barricade incident during which gunfire had been exchanged with the police. Several ERT members expressed concern to Wendell Cunningham, an ERT member and vice-chairman of the union, that higher-ranking officials, including the Mayor, had demanded that tear gas be used during the barricade, notwithstanding the recognized hazards of, and their lack of training for, its use in such situations. Cunningham and other police officers informed Baumann, who was not at the barricade, of the tear-gas issue and shared with him other safety concerns about how the incident had been handled. During a union leadership meeting on June 1, Baumann told Cunningham to initiate a union safety committee investigation into the incident.
The following day, a reporter told Baumann that he had received conflicting information from MPD officials about whether there had been an order to use tear gas at the barricade and suggested that Baumann should review the recording of the ERT's communications during the incident. Baumann told Cunningham to get the ERT recording, and Cunningham sent an email to the MPD's Office of Unified Communications (" OUC" ) requesting the recording for " incident review" purposes. On June 5, the OUC gave Cunningham a copy of the recording upon his signing a receipt stating " [i]t is understood [that] the following recording [is] for internal investigation only . .., there are no public requests for . . . the incident," and " the recording  will not be released to the public without prior, written approval from the [OUC]." The same day, Baumann listened to the recording and released a portion of it to two reporters.
On June 11, Baumann emailed Assistant Chief Alfred Durham and others, forwarding and commenting on a chain of emails among MPD officials regarding officers' safety concerns at the barricade. Baumann wrote that the email chain revealed that Assistant Chief Patrick Burke had violated the Collective Bargaining Agreement (" CBA" ) between the MPD and the union -- by, for example, failing to recognize the legitimacy of the request of the union safety committee to meet with him and Assistant Chief Durham and stating that the committee is subject to the chain of command -- and the D.C. Code.
In early June, Chief of Police Cathy Lanier ordered the Internal Affairs Division (" IAD" ) to investigate the barricade incident, including, in particular, how the media had obtained the ERT recording. The IAD interviewed Baumann twice. On June 19, Baumann explained it was his understanding that the IAD investigation related to certain information that had been given to the union safety committee to determine " whether or not there were any violations or threats to Public Safety." Baumann told the IAD that his interview responses constituted a protected disclosure. Noting that he was not present at the barricade, Baumann otherwise declined to answer questions that he claimed impermissibly related to his duties as union chairman. On July 14, after being told he ...