A federal appeals court has ruled that a San Diego police officer that was fired for appearing in adult videos was wrongfully terminated.
Luis Acevedo often wore a fake police outfit in the scenarios depicted in his amateur adult videos. After supervisors discovered that Acevedo was selling solo masturbation videos of himself on Ebay, they arranged a sting operation where police operatives purchased a pair of men's underwear and videotape from Acevedo.
Acevedo was a city police officer for seven and a half years before he was fired for unbecoming and immoral conduct and violating the outside employment policy in 2001.
Acevedo admitted that he had made the videos and sold the underwear, but argued that it was his First Amendment right to do so. A federal court disagreed, dismissing the case on the basis of the San Diego Police Department's argument that Acevedo's videos did not meet the more stringent standards of constitutional protection of free speech offered to public employees.
Public employees have no inherent protection from dismissal if their speech is construed as a mundane grievance or complaint unless they are "whistle blowing" - pointing out breaches of the public trust.
The Ninth Circuit Court of Appeals reversed and remanded the case, writing in their decision that "(t) he question we face here is whether Roe's status as a public employee means he has no First Amendment protection even though his expressive conduct occurred off-duty, away from the workplace and said nothing about Roe's government employment or employer."
The Ninth Circuit concluded last week that Acevedo's videos were protected by the First Amendment.
The case will now be heard in federal court, where the city will argue that they had the right to dismiss Acevedo on different grounds, probably, as the Ninth suggested, that police department's interests in running an efficient and non-disruptive workplace was affected by Acevedo's videos.
