No First Amendment Problem with Police Department Allowing Pro-LGBTQ Uniform Patches But Rejecting Alternatives Police Officer Requested

The factual backstory, from an earlier District Court decision:

In approximately August 2017, defendant Edgardo Garcia, then the Chief of Police, created a Lesbian, Gay, Bisexual, Transgender, and Queer ("LGBTQ") Advisory Board at the SJPD…..  Concurrent with the creation of the advisory board, Chief Garcia created a LGBTQ Liaison Officer position within the SJPD…. In August 2019, as part of the region's celebration of Silicon Valley Pride Month, Chief Garcia raised a rainbow-themed LGBTQ pride flag in place of the City of San Jose flag on the flagpole outside SJPD headquarters.

On July 28, 2020, Chief Garcia issued official SJPD Memorandum #2020-33, introducing a rainbow-themed LGBTQ pride shoulder patch for the SJPD uniform.  On the same day, Chief Garcia also issued official SJPD Memorandum #2020-36, authorizing SJPD uniformed personnel to "permanently" wear either a Breast Cancer Awareness, Pride, or Military specialty patch on their uniforms "in lieu of the traditional shoulder patch."

On November 11, 2020, Mr. Sangervasi sent a memorandum to Chief Garcia titled, "Desecration of The Uniform by Memorandum #2020-33." Mr. Sangervasi's memorandum "detailed his intent to forever protect and defend the sacrosanct neutral and impartial visual appearance of The American Uniform" by submitting various "free speech patch and flag designs" that he wanted the SJPD to adopt. Mr. Sangervasi proposed patch designs featuring phrases and images such as "natural hetero-sexual pride," what appears to be Christian rosary beads encircling the traditional SJPD crest, and an image of the Christian archangel Saint Michael. He proposed flag designs featuring phrases and images including, for example, "father + mother = girls + boys," "white lives matter," and the confederate battle flag.

And the Ninth Circuit's analysis from Sangervasi v. City of San Jose, decided Tuesday by Judges Diarmuid O'Scannlain, Andrew Kleinfeld, and Barry Silverman:

Sangervasi [a former San Jose police officer] contends that Defendants violated his First Amendment rights to free speech and the free exercise of his religion, and his Fourteenth Amendment right to equal protection, by implementing an outreach policy to the lesbian, gay, bisexual, transgender, and queer ("LGBTQ") community that included the use of a specialty LGBTQ flag and officer uniform patch, and the creation of a LGBTQ advisory board and liaison position….

The district court properly dismissed Sangervasi's free speech and free exercise claims because Defendants were engaging in government speech and Sangervasi was speaking as a government employee. See Pleasant Grove City, Utah v. Summum (2009) (recognizing that Free Speech Clause does not regulate government speech, and that a government entity is ultimately accountable to electorate and political process for its advocacy); Garcetti v. Ceballos (2006) (recognizing that government as an employer can restrict speech by public employees made pursuant to their professional responsibilities)….

(Sangervasi was fired, possibly because of this controversy, but his federal lawsuit isn't challenging the firing.)

Comments

[Dr. Ed 2]

What would happen if an officer demanded to wear a MALE breast cancer awareness and screamed sex discrimination upon refusal.

About 1%-2% of breast cancers are in biological males, and they are inevitably fatal because (a) no one is looking for it and (b) the feminist bias of those involved.

It's a fact that prostrate cancer kills more than breast cancer -- with lung cancer far more lethal, but this would put it in a clear sex distinction.

As an aside, if I were a gay officer, I would NOT wear a gay patch -- a good defense attorney could twist that into bias.

[Noscitur a sociis]

As an aside, if I were a gay officer, I would NOT wear a gay patch -- a good defense attorney could twist that into bias.

Can you run us through how you think that cross would go?

[DixieTune]

"Officer, my client is accused of harassing a gay man outside of a bar. He said he did not even touch the guy, and that the 'victim' was screaming at him, and he told him to leave him alone. Given your LGBT patch, did you really conduct a fair investigation, or did you come into it with your mind already made up?"

[Alpheus W Drinkwater]

Answer: "I conducted a fair investigation."

What else you got?

[Dr. Ed 2]

Discovery...

[Noscitur a sociis]

What

[Dr. Ed 2]

Look into how Jason Vassel got away with slicing & dicing two White kids at UMass even though the whole thing was recorded on camera.

A Black cop, recruited into the department by the White Lieutenant, wakes him up and tells him "it looks like a drug deal" -- that means the White Lieutenant, who had been in bed, asleep, is a racist.

[Armchair]

That's an interesting question.

Let's say two police officers, Smith and Jones, roll up to a fight outside a church. A Black man and White man are fighting. Smith and Jones break up the fight, but in the process they physically restrain and injure the Black Man. The Black guy sues.

Is there a difference in the case if Smith and Jones were wearing arm patches that say "White Lives Matter" versus wearing no arm patch? Could an attorney use their wearing "White Lives Matter" arm bands as evidence of racial bias on the part of the cops, and partially due to their bias, they favored the white guy in the conflict and consciously or unconsciously used excess force against the black guy?

On a higher level, let's say Jones and Smith's precinct needs to approve the arm bands before they can be worn.. The precinct decides to approve the "White Lives Matter" armband, but not the "Black Lives Matter" armband. Could that be construed as systemic bias on the part of the precinct? An organizational racist bias that contributed towards the abuse the black guy suffered?

[Drewski]

"What would happen if an officer demanded to wear a MALE breast cancer awareness and screamed sex discrimination upon refusal."

What about the San Jose breast cancer awareness patch is specifically female? It's a pink stripe on the badge. If an officer took that to court they'd be lucky to avoid sanctions.

"a good defense attorney could twist that into bias"

Yes, the best defense attorneys expose themselves to easy objections while potentially pissing off some of the jurors.

[Krayt]

And in any case, they might say fine to a male breast cancer patch, who knows?

He proposed flag designs featuring phrases and images including, for example, "father + mother = girls + boys," "white lives matter," and the confederate battle flag.

The first two are never raised except in context of opposition to, not some kind of friendly camaraderie. In case of confusion of the context, see the third.

And even all that doesn't really matter as what goes on a uniform is under government control. In the past, such things might fly; no more.

[Joe_dallas]

We see how well that LGBTQ & DEI inititive is working out in LA

[Roger S]

You mean the lesbian fire chiefs? The schools, libraries, and other govt functions have LGBTQ symbols everywhere.

[Joe_dallas]

The focus on hiring based on DEI and LGBTQ instead of merit. Lack of compentency has become apparent to all except to the woke.

[mggaviles]

How? If there any proof that DEI hirings or having a female fire chief contributed to any wrong decisions?

[Dr. Ed 2]

"As the Los Angeles Fire Department faced extraordinary warnings of life-threatening winds, top commanders decided not to assign for emergency deployment roughly 1,000 available firefighters and dozens of water-carrying engines in advance of the fire that destroyed much of the Pacific Palisades and continues to burn, interviews and internal LAFD records show. "

https://www.latimes.com/california/story/2025-01-14/firefighters-lafd-response-lack-of-staff-engines-pacific-palisades-fire

[Dr. Ed 2]

"Los Angeles Fire Department Chief Kristin Crowley confirmed that more than 100 fire trucks — over half the fleet — were in need of repairs and out of commission due to budget cuts when wildfires ravaged the area this week."

https://www.newsmax.com/us/firefighters-california-wildfires/2025/01/14/id/1195072/

She could have emphasized mechanics instead of lesbians.

[Jason Cavanaugh]

Joe_highschool with his usual dose of evidence-free bigotry.

You claim to be a lawyer. Even if we presume you're actually telling the truth for the very first time, that's a merit-less DEI hire everyone can see.

[Noscitur a sociis]

You claim to be a lawyer.

Really? I’d like to think he has a little more respect for our collective intelligence than that.

Now Sonja_T, there was a good lawyer…

[Jason Cavanaugh]

That really made me chuckle!

[Sarcastr0]

'minority in leadership postion = DEI = bad at job' is just bigotry with extra steps.

[Frank Drackman]

I liked Chief Garcia better when he was with the Village People

[MaddogEngineer]

The real problem here (and it's a flash point in school districts and other local public venues) is the presumption that LGBTQ advocacy is not political, that it's just like medical advocacy/awareness (breast/prostate cancer), uncontroversial as merely an obvious, uncontestable civil rights right.

No, sorry, some things are political and should be acknowledged as such. I would not conversely argue that vaccine/autism awareness patch is not political either. Of course it is, no matter the "truthiness".

[Stupid Government Tricks]

The very fact that they want to wear it on an official uniform makes it political. It wouldn't matter if it was a patch for the kiddy train ride in Tilden Park.

[Bored Lawyer]

The issue is not whether the speech is political, but whether it's government speech or individual speech. The government can engage in speech that others disagree with. You have the right to disagree, but the government as employer can still require you to speak their message, or resign.

[Noscitur a sociis]

Note that the government here wasn’t requiring anyone to “say” anything: the issue was not allowing the officer to “say” some additional things that he wanted to.

[DixieTune]

The government should not be speaking at all.

[mggaviles]

One certainly reads quite amusing comments in this legal blog these days. The one above is hilarious.

[DixieTune]

Glad to be of entertainment. The government's job is to provide safety and security and other necessary services. There's no reason for the government to be speaking one way or another on any controversial issues.

[Jason Cavanaugh]

Now you've moved your idiotic remark to only "controversial issues?"

As defined by whom? Where will you move your goalposts next?

[DixieTune]

What is the government purpose for advocating for a position?

[Jason Cavanaugh]

What's the purpose in yours?

I'm not playing your dumb game until you clarify how many times and to what degree you intend on moving your goalposts.

You are a twit.

[Bob from Ohio]

No way the Ninth Circuit was deciding against a "LGBTQ" patch. Plaintiff was completely wasting his time and money.

[Noscitur a sociis]

Well, you’re half right!

[The Margrave of Azilia]

I suppose the government has the same authority to allow a Pride patch - reflecting government policy in favor of "LGBTQ pride" - that it does to allow a BDS patch - reflecting a government policy in favor of cutting all economic ties to the state of Israel.

In other words, the government has the right to speak, and it has the right to speak stupidly.

While we're at it, maybe the police can authorize a *BDSM* patch, which cops can choose to wear in honor of the sadist community.

[The Margrave of Azilia]

(a dig at sadistic cops, who I acknowledge are a minority of cops)

[Ed Grinberg]

I suppose the government has the same authority to allow a Pride patch - reflecting government policy in favor of "LGBTQ pride" - that it does to allow a BDS patch - reflecting a government policy in favor of cutting all economic ties to the state of Israel.

Hmmm... I am not sure that's right (as a matter of law). Would you say that "the government has the same authority" to allow a patch "boycotting" Mexico? I'm pretty sure there'd instantly be a discrimination lawsuit by persons of Mexican heritage or Mexican dual-citizens, and I'm pretty sure it'd be successful.

[Bored Lawyer]

See Pleasant Grove City, Utah v. Summum (2009) (recognizing that Free Speech Clause does not regulate government speech, and that a government entity is ultimately accountable to electorate and political process for its advocacy)

The courts cannot overrule every stupidity. An engaged electorate is more powerful than a judge.

[ReaderY]

In general, employee uniforms present the employer’s message, not the employee’s.