• April 26, 2010

Hypothetical:  if a City were hiring police officers, would it violate the First Amendment if it declined to hire a candidate because the candidate had been openly and publicly critical of the city?

From the sound of the hearing before the U.S. Court of Appeals for the Eighth Circuit last week in Dempsey v. City of Omaha, Court File No. 09-3667, U.S. Court of Appeals Circuit Judge James B. Loken might answer the question, “Emphatically not.”  His colleague, U.S. Court of Appeals Circuit Judge Michael J. Melloy might answer otherwise?  The third member of the appellate panel, U.S. Court of Appeals Sr. Circuit Judge Myron H. Bright might tip the scale?

The case arises in the context of the annexation of Elkhorn, Nebraska by Omaha which, apparently, has caused something of a local ruckus for some years now (note press here).  Hall of Fame Nebraska Police Officer and Elhorn Chief of Police, Tim Dempsey, appears to have been singled out for “non-hiring” by the City of Omaha after he spoke out publicly in a way critical of Omaha decision-makers.

At oral argument on April 15, Judge Loken was clearly troubled by the prospect of a City compelled to hire an out-spoken gadfly or critic — a public policy that could all but guaranty a toxic working environment?

The City’s appellate brief is here.  Dempsey’s brief is here.  Oral arguments before the U.S. Court of Appeals are of widely varying quality on many levels — appellate advocacy, involvement of the Court, and even audio quality.  The quality of oral argument in this case (Case No. 09-3667) was quite high on all levels.

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