Pubdate: Wed, 18 Jul 2012
Source: Trinity Journal, The (CA)
Copyright: 2012 The Trinity Journal
Contact:  http://www.trinityjournal.com/
Details: http://www.mapinc.org/media/4890
Author: Amy Gittelsohn

DEPUTY SUES SHERIFF, COUNTY OVER FREE SPEECH RIGHTS

Trinity County Deputy Mark Potts has sued Sheriff Bruce Haney, the 
Sheriff's Department and Trinity County, saying his free speech 
rights were violated when he was officially reprimanded for writing 
letters to the editor of The Trinity Journal.

The lawsuit was filed in the U.S. District Court in Sacramento.

Potts, who ran for sheriff in 2010, has been employed by the 
Sheriff's Department for about 10 years, from 2000 to 2004, and 2007 
to present. He has been a frequent contributor of letters to the 
editor of the Journal, expressing libertarian views on topics ranging 
from drug laws to the Constitution.

Potts had been assigned to narcotics but now works in the patrol division.

The complaint filed by San Francisco attorney Shilpi Agarwal of Keker 
& Van Nest and Linda Lye, an attorney for the American Civil 
Liberties Union Foundation, says Potts was not on duty when engaging 
in his letter writing, nor did he use county resources such as computers.

"Mr. Potts' letters have never caused a disruption of the workplace, 
affected the performance of his job duties, or otherwise interfered 
with the operations of the Sheriff's Office," the complaint says.

The complaint says during the summer of 2011, Sheriff Haney and 
Undersheriff Ken Langston told Potts in a meeting that the district 
attorney had threatened not to prosecute any cases he investigated if 
he continued to write letters to the editor, and he needed to stop.

The prior sheriff, Lorrac Craig, had also been asked by the district 
attorney to stop Potts' letter writing but refused, the complaint says.

Potts sought information on what topics would be acceptable for 
letters, but never got a response, according to the complaint.

Four additional letters authored by Potts were published in the 
Journal in October and November of 2011.

In one of the letters Potts likened the war on drugs to Prohibition 
and said it gave rise to the black market and created Mexican drug 
cartels. In other letters Potts said the federal government has zero 
authority to involve itself in the issue of marijuana in Trinity 
County or any state, objected to gun control and called America 
"Incarceration Nation."

In February 2012, Potts received a formal written reprimand, recorded 
in his personnel file, informing him that with the letters he had 
violated provisions of the Office Policy Manual, prohibiting conduct 
that is "unbecoming a member of the office" or that reflects 
"unfavorably upon the office," as well as speech that "tends to 
compromise or damage the mission, function, reputation or 
professionalism" of the office.

The notice also informed Potts that any further violations of the 
manual could result in additional disciplinary employment action, 
including termination.

As a result, the complaint says, Potts ceased writing letters to the 
editor. Attorneys for Potts have written the Sheriff's Office and 
County Counsel Derek Cole asking that the reprimand be expunged and 
enforcement of the policy that affects his letter-writing to the 
Journal be ceased.

Sheriff Haney did not return a call for comment Monday.

However, in a July 6 letter to Potts' attorneys contained in the 
court file, Cole said the department stands by its reprimand and will 
not rescind it.

The basis for the discipline was not simply "disruption" with 
Sheriff's Department operations but also public perception, Cole stated.

"Because Deputy Potts' writings so vigorously challenge the 
legitimacy of the laws he is sworn to enforce, it is understandable 
that some of these individuals would be concerned that Deputy Potts 
will not enforce those laws and that his views may be shared by 
others within the department," Cole wrote.

He gave as examples letters to the editor of the Journal by other 
residents who accused Potts of "duplicity," "naked hypocrisy," and 
analogized his former assignment as a narcotics officer to Bonnie and 
Clyde being given oversight over banks.

"In addition," Cole said in the letter, "Deputy Potts' prolific 
opinion-writing has undermined his ability to provide testimony 
necessary in criminal prosecutions."

"The District Attorney's concerns are justified," Cole added. "In 
addition to the topics Deputy Potts has addressed in the four letters 
at issue, he also has written that jurors should disregard laws they 
feel unjust and presumably acquit someone for whom the facts would 
otherwise require a conviction." The letter on jury nullification was 
published in August 2011.

There is no blanket restriction on Potts' ability to write letters to 
the editor, he said, adding that the discipline is for subjects 
inextricably related to Potts' duties as a patrol officer, directly 
bearing on the department's image and his ability to testify in court.

Potts' attorneys responded in court documents that the subject of 
Potts' letters has never come up in court, he had good performance 
reviews, and the defendants can't rely on presumed perceptions to 
meet their burden.

The reprimand violates Potts' rights guaranteed by the First and 
Fourteenth Amendments to the U.S. Constitution, the complaint says, 
calling the policies cited "vague" and "overbroad."

"Potts recognizes the difference between his privately held views and 
his job duties," his lawyers state in court documents.

They add that during his time on the Narcotics Task Force, Potts 
suggested that his supervisors implement military tactics to reduce 
the number of suspect escapes

during drug raids and raised questions with his supervisors about 
whether the office's interpretation of a statute pertaining to 
medical marijuana collectives was too lenient.

The lawsuit does not seek money but rather an injunction prohibiting 
the department from implementing or enforcing the policies Potts is 
accused of violating, that they be found unconstitutional and his 
reprimand be rescinded.

The Trinity County Board of Supervisors was to discuss the lawsuit in 
closed session on Tuesday. A hearing on the request for a preliminary 
injunction is to be heard Aug. 22 in Sacramento before Judge John Mendez.
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