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Officer’s Off-Duty Conduct at Abortion Clinic Not Protected by Free Speech

Officer’s Off-Duty Conduct at Abortion Clinic Not Protected by Free Speech

Dick Lalowski was a police officer for the City of Des Plaines, Illinois. Lalowski was working his overnight shift when he saw demonstrators gathering outside an abortion clinic. The demonstrators hoped to dissuade women from entering the clinic and had signs of aborted fetuses. Lalowski told the demonstrators not to impede traffic or stop anyone from entering the clinic, and that if they did not comply he would arrest them.

Demonstrators claimed that Lalowski called Paula Emmerth, a woman protesting, a “fat fucking cow” and that Lalowski repeatedly used profanities and threats. Lalowski admits that the initial confrontation with the demonstrators was adversarial but denies using profanities.

Lalowski, now off duty, in civilian clothes, and in his personal car, returned to the abortion clinic. He went up to Emmerth and stated that he was now off duty and not representing anyone. He asked why they carried signs of aborted fetuses, Emmerth replied to show the truth about abortion, and Lalowski responded “Let’s talk about the truth then. You’re fat.” He stated that the demonstrators should take down the signs, and when they refused he called Emmerth a “fat fucking cow” and a “sinner of gluttony.” He talked to many demonstrators accusing them of using intimidation tactics like the Taliban.

The City fired Lalowski, and he filed a federal lawsuit alleging his conduct at the clinic was protected by the First Amendment’s free speech guarantees. The Court agreed that some of Lalowski’s speech touched upon matters of public concern, however his speech had the potential to create problems in maintaining discipline and harmony in the Department. The Court noted that abortion protests are nothing new and the Department is tasked with keeping peace during such a protest. By giving his speech he positioned himself in opposition with the goals of his employer as other officers on scene had to confront Lalowski after demonstrators called 911 on him

The Court stated that although Lalowski was off duty when giving his speech, he cannot be regarded as a member of the general public. He first arrived while on duty and returned about 30 minutes later and this confrontation was merely a continuation of the earlier confrontation when he was on duty. Lalowski represented himself as an off duty police officer, and not a private citizen, and for those reasons the court could not find he was speaking as a member of the general public.

Lalowski v. City of Des Plaines, 2015 WL 3756412 (2d Cir. 2015)

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