Civil Case Law - Ninth Circuit

9th Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, Northern Mariana Islands)

Cases Upholding Agency Anti-Fraternization Policies

Bautista v. County of Los Angeles, 190 Cal.App.4th 869, 118 Cal.Rptr.3d 714 (Cal.App. 2 Dist. 2010): A male police officer became associated with a known prostitute. He gave her rides in his car to a methadone clinic and to her home. On two occasions other police officers spotted the officer with the same woman, and advised him not to associate with her as she was a known prostitute and an active heroin user. The officer and the woman both indicated that they were not dating and that the officer was only helping her. The officer and the women eventually moved in together, and later married. The sheriff’s department had a policy that stated “[m]embers shall not knowingly maintain a personal association with persons who are under criminal investigation or indictment and/or who have an open and notorious reputation in the community for criminal activity, where such association would be detrimental to the image of the Department, unless express written permission is received from the member's unit commander.” After a hearing, the agency terminated the officer for violating the prohibited association policy, and failing to report his relationship. The court upheld the officer’s termination. The court found that the county sheriff's department’s policy “was rationally related to a legitimate interest in regulating officers' behavior to minimize conflicts of interest and protect the department's credibility and integrity, and thus the policy did not violate the intimate associational rights of a deputy sheriff who was terminated for violating the policy by engaging in a relationship with a known prostitute and heroin addict.”

Cases Not Upholding Agency Anti-Fraternization Policies

Reuter v. Skipper, 832 F. Supp. 1420 (D. Or. 1993): A female correctional officer became involved with a former inmate, and reported this relationship to her supervisor. The Sheriff’s office later issued a new rule making it a presumptive conflict of interest for a correctional officer to associate with any person who was imprisoned or convicted of a felony within the past ten years. The officer was terminated from her position, pursuant to this new rule.

The officer brought a § 1983 action seeking a declaration that the First Amendment protected her association with the former inmate, and that the county sheriff's work rules were constitutionally overbroad. The court granted the officer’s motion for summary judgment. The court determined that “a couple living together as husband and wife constitutes a ‘family’ in today’s society.” Therefore, the new rule prohibiting association with former inmates intruded on the family unit, and the court chose to apply intermediate scrutiny to the rule. The state asserted its interest in maintaining “security and protection of the jail facility,” but the court found that the rule was not narrowly tailored to meet this interest. In finding that the rule was not narrowly tailored, the court found it violated Oregon’s state constitution because it continued to punish ex-inmates for association. Further, the rule was not applied consistently, as it permitted employees with a family member in jail to visit and communicate with that family member. Finally, the rule was overbroad in that it prohibited association of employees with anyone who might have at one time been convicted of a crime.

The court distinguished this from other cases, and specifically noted that the officer and the inmate had developed an intimate relationship that predated the enactment or implementation of the sheriff’s rules.