Many law enforcement agencies have policies prohibiting officers from associating with criminals, or with felons. From time to time, an officer is disciplined or terminated for violating such a policy. This recent story covers a Savannah officer who was fired for having “a relationship with a convicted felon.” This article addresses a Texas officer who resigned in lieu of termination for “maintain[ing] close ties to two known felons.” This post discusses such policies, including whether they infringe on officers’ associational rights under the United States Constitution, and concludes with a few points to consider about the scope of such policies.
Policies prohibiting officers from associating with criminals are widespread. Here are some examples of policies adopted by North Carolina law enforcement agencies:
- Raleigh Police Department, Departmental Operating Instruction 1104-05: “All employees are prohibited from having regular or continuous associations or dealings with any person the employee knows, or should know, is under criminal investigation or indictment. Employees are prohibited from associations with persons who have a reputation in the community or the Department for present involvement in felonious or criminal behavior, except as necessary in the performance of official duties or where unavoidable because of other personal relationships or living location.”
- Carrboro Police Department, Policies and Procedures Manual, Chapter 1: Rules of Conduct: “Members shall avoid associations or dealings with persons whom the member knows, or reasonably should know, to be a racketeer, sexual offender, gambler, felon or suspected felon, person under criminal investigation or indictment, or person who has a reputation in the community for present involvement in criminal activity.”
- Greenville Police Department, Policies and Procedures, Chapter 26: Disciplinary Procedures and Internal Investigations: “Employees shall avoid associating with, or conducting business with, persons whom they know, or should know, to be racketeers, sexual offenders, professional gamblers, suspected felons, persons under criminal investigation or indictment, or who have a reputation in the community for present involvement in felonious or criminal behavior, except as necessary in the performance of official duties or where unavoidable because that individual is a close relative of the employee.”
- Concord Police Department, General Order 1.01: Code of Conduct: “Coworkers shall avoid regular or continuous associations with persons or groups they reasonably believe, know or should know are planning to, or are engaged in, criminal behavior, or who advocate the overthrow of government, such that the association would undermine the public trust or affect the coworker’s credibility or integrity. The exceptions are associations that are necessary in the performance of duty or familial relationships of which the Chief of Police is cognizant.”
My sense in talking with members of the law enforcement community is that such policies exist in most agencies, either expressly or as a norm that is understood to fall under broader prohibitions, such as those against conduct unbecoming of an officer or conduct detrimental to the agency.
These policies serve several purposes. First, they prevent conflicts of interest from arising. If an officer has a close personal relationship with someone on the wrong side of the law, there is always the risk that the officer will tip the person off about an investigation or will treat the person more favorably than a stranger engaged in similar activity. That would frustrate the impartial administration of justice and could even endanger other officers. Second, they protect the reputation of the agency. If the public were to learn of connections between officers and people involved in criminal activity, the public could lose faith in the agency or begin to view it as corrupt.
The Constitution protects a right to free association. Actually, it protects two distinct kinds of associative rights.
The right to expressive association. The first is the right to expressive association under the First Amendment. By its terms, the First Amendment protects religious liberty, free speech, and the rights to assemble and to petition the government for redress of grievances. However, the Supreme Court of the United States has stated that “[w]hile the freedom of association is not explicitly set out in the Amendment, it [is] implicit in the freedoms of speech, assembly, and petition.” Healy v. James, 408 U.S. 169 (1972).
When it comes to public employees’ First Amendment rights, courts apply something called the “Pickering test,” named after Pickering v. Board of Education, 391 U.S. 563 (1968) (holding that a teacher’s public criticism of the school board’s financial management was protected by the First Amendment and could not be a basis for firing the teacher). In a nutshell, a government employer violates the First Amendment when (1) the employer disciplines or terminates an employee, (2) as a result of the employee’s speech as a citizen on a matter of public concern, and (3) the speech was not likely to damage the efficient provision of public services severely enough to outweigh the employee’s interest in speaking. See generally Lawson v. Union County Clerk of Court, 828 F.3d 239 (4th Cir. 2016) (summarizing the law and listing various ways in which an employee’s speech may be harmful, such as impairing discipline and harming relationships with co-workers).
Bringing this all together in the context of an officer’s right to expressive association, issues seem to arise mainly with regard to . . . motorcycle clubs. For example, in Piscottano v. Murphy, 511 F.3d 247 (2d Cir. 2007), four correctional officers were terminated or otherwise disciplined as a result of their membership in the Outlaws Motorcycle Club. The officers sued, and the Second Circuit applied Pickering. It ruled that joining or otherwise supporting the Outlaws was expression on a matter of public concern (because motorcycle clubs are a matter of public concern, given that many are linked to criminal activity) but that the Department of Correction’s restriction of that expression was justified because membership was likely to embroil officers in fights with other clubs that would reflect poorly on the Department, was likely to impede officers’ ability to collaborate with other law enforcement agencies in investigations, and was likely to create conflicts of interest if the officers supervised Outlaws or members of rival groups in prison.
Likewise, in Turner v. United States Capitol Police, 34 F.Supp.3d 124 (D.D.C. 2014), an officer was terminated after he joined the Tribes Motorcycle Club. That club is apparently a non-outlaw club, but the officer’s membership led the officer to spend time around other motorcycle clubs, including outlaw clubs with members who were felons and white supremacists. He sued to contest his firing, alleging, among other things, a violation of his right to expressive association. The court dismissed the claim, applying Pickering and concluding that the agency’s “interest in the efficient operation of law enforcement activities . . . outweighs plaintiff’s interest in his cited activities,” and stating that the officer’s “multiple encounters with outlaw organizations and individuals could reasonably be expected to reflect poorly on the Capitol Police” and to interfere with its operations.
Issues regarding the right to expressive association may also arise when officers affiliate with certain political or advocacy organizations, including those on the far left or right that promote a mistrust of government in general or of law enforcement in particular. In Greco v. City of New York, 686 F.Supp.3d 191 (E.D.N.Y. 2023), a NYPD officer sued after he was fired, allegedly because of his association with Roger Stone, the Proud Boys, the Oath Keepers, and other groups connected to the storming of the United States Capitol. A federal judge declined to dismiss the officer’s claim that his firing violated his right to expressive association, concluding that the officer “sufficiently allege[d] that he engaged in expressive conduct that touched on a matter of public concern—namely, the 2020 Presidential election.”
The right to intimate association. The other type of associative right protected by the Constitution is the right to intimate association. In Roberts v. United States Jaycees, 468 U.S. 609 (1984), the Supreme Court stated that “choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme.” There appears to be some doctrinal dispute about whether this right actually derives from the First Amendment or is more appropriately based in the Due Process Clause of the Fourteenth Amendment. Regardless, it protects the ability of individuals to marry, to form families, and to cohabit with relatives. (Exactly how far the concept extends is not completely settled.)
Agency policies against associating with criminals limit officers’ ability to form relationships with certain individuals and therefore limit the officers’ right to intimate association. However, courts overwhelmingly have upheld such policies against challenges based in the right to intimate association. For example, in Ross v. Clayton County, Ga., 173 F.3d 1305 (11th Cir. 1999), a county correctional officer was demoted for living with his brother, who was on probation. The officer sued, but as to the officer’s freedom of intimate association claim, the Eleventh Circuit stated that “[i]n the context of law enforcement, there is a special need to employ persons who act with good judgment and avoid potential conflicts of interest. Personal associations with felons or active probationers could undermine appropriate objectives of a law enforcement agency.”
Similarly, in Bautista v. County of Los Angeles, 190 Cal.App.4th 869 (Cal. Ct. App. 2010), a sheriff’s deputy was fired “for engaging in a personal relationship with a known prostitute and heroin addict.” The issue on appeal was whether the agency’s policy against associations with criminals violated the deputy’s freedom of intimate association. The matter was particularly poignant because the deputy subsequently married the individual in question. The reviewing court upheld the policy and the deputy’s termination because “[t]he Department has a legitimate interest in regulating the behavior of its sworn officers to minimize conflicts of interests and protect the credibility and integrity of the Department.” Collecting several prior cases, the court further stated that “anti-fraternization rules prohibiting police officers from socializing with those who they know are engaging in criminal activity have routinely been upheld against constitutional challenges.”
Reflections on policies. One possible conclusion from the above is that courts generally seem satisfied with these policies, so there’s no need to spend too much time worrying about the details. But another conclusion is almost the opposite: because courts regularly uphold these policies, it is up to agencies to ensure that their contents are fair and serve their intended purposes. Having spent some time reviewing various agency policies and reading judicial opinions about them, I offer a few thoughts for agencies’ consideration:
- First, consider including an exception that allows officers to associate with criminals in the course of the officers’ duties. I think that’s generally understood, but it still may be reassuring to codify.
- Second, consider including an exception for close family members. Although the policy in Ross didn’t include such an exception and was upheld, policies that require officers to sever family ties may be more vulnerable to constitutional challenges. They also may prevent individuals who would be good officers from applying to serve. Agencies that include family exceptions sometimes include requirements like notifying the agency about family associations.
- Third, consider limiting the policy to individuals who are currently involved in criminal activity. It is not likely the intention of most policies to prevent officers from having friends who made youthful mistakes but who are now responsible citizens. Having a policy that is drawn more narrowly may also help to prevent selective enforcement of the policy, or at least the perception of selective enforcement.
- Fourth, consider whether to bar officers from associating with people who have only a “reputation” of being involved in criminal activity. Such provisions are inherently somewhat vague and reputations are not always based in fact. On the other hand, one of the goals of policies against associating with criminals is to protect the agency’s image and maintain public confidence, so perhaps it is reasonable to require officers to steer clear of people with bad reputations.
As a final note, I’m always happy to hear from readers who have information, comments, questions, or concerns about any of my posts. Our new blog platform doesn’t support comments, but you can always reach out to me by email; my address is on my UNC faculty page.
