Appeals court uphold officer's firing for racist, derogatory social media posts

White

The Court of Appeals on Tuesday upheld the firing of a Milwaukee police officer over his racist and demeaning social media posts.

The District 1 Court of Appeals panel, in an opinion by Appellate Judge Maxine A. White, rejected Erik A. Andrade's argument that the Milwaukee Fire and Police Commission violated his civil rights by not letting him present a full defense.

White's opinion was joined by Appellate Judge M. Joseph Donald.

Appellate Judge Timothy G. Dugan dissented, saying that Andrade was not adequately informed that the DA's finding that Andrade could no longer be involved in future prosecutions would be part of the case against him.

Andrade was dismissed from the police force after his posts became public in the wake of a widely reported confrontation between police and former Milwaukee Bucks player Sterling Brown. Brown was tased and arrested during the incident, which started because Brown was parked improperly in a Walgreen's parking lot.

Andrade responded to a call for assistance to the scene, but was not involved in the January, 2018 arrest.

Later, Andrade posted to Facebook: 

“Nice meeting Sterling Brown of the Milwaukee Bucks at work this morning! Lol#FearTheDeer.”

The content of the post spurred an investigation by the Police Department's Internal Affairs division, which uncovered other posts, described by White in her opinion:

• On March 24, 2018, Andrade posted a comment in response to a Channel 58 article titled, “Milwaukee County Supervisor Introduces Policy Against Mass Incarceration.”
  
  His comment read: It’s hilarious when people talk about mass incarceration Imao [laughing my ass off] like wtf [what the fuck] is that? Mostly all the people I deal with at work cannot stay locked up and they should be. Last time I checked, if you don’t commit crimes, you don’t get incarcerated … but that’s hard for people to comprehend. 
  
  
• On April 16, 2018, Andrade posted a meme1 composed on the Tide washing detergent logo and the words “SICK AND TIDE OF THESE HOES" with Andrade’s words above stating, “What comes to mind when I’m at work and I’m driving down Greenfield Ave. Smh [Shaking my head].” 
  
  
• On April 24, 2018, Andrade shared a “Who Wore it Better” meme that compared NBA player Kevin Durant’s hair texture to an ice cream cone that had been dipped in chocolate sprinkles. Andrade commented, “Damn … more naps than preschool! Lmao [Laughing my ass off].” 

There were others as well, including this about Cleveland Cavaliers' player J.R. Smith: “I hope J.R. Smith double parks in Walgreens handicap parking spots when he’s in Milwaukee;” and this: “Had a great time workin replacement over in D5 the other day …. 5+ OT and a use of force. Lol.” 

Andrade told an Internal Affairs investigator that “ 'some of [his posts] are meant to be jokes; some are like meant to educate and enlighten … maybe give … a point of view,' ” White wrote.

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Former Police Chief Alfonso Morales filed two counts of violating the department's Code of Conduct against Andrade based on Andrade's posts. Morales charged that they were  disruptive to MPD's mission and  that Andrade failed to inspire and sustain the confidence of the community.

Morales fired Andrade, and Andrade appealed the action to the Fire and Police Commission.

During the hearing, Milwaukee County Chief Deputy District Attorney Kent Lovern testified that Andrade's posts were "were damaging enough to Officer Andrade’s credibility that we would not use Officer Andrade in future prosecutions." 

Andrade tried to compare the discipline he received to that meted out to others in the Brown arrest, but the hearing examiner ruled the argument irrelevant, since none of those officers were disciplined for social media posts.

The commissioners upheld the firing and Andrade appealed to circuit court, where the dismissal also was upheld.

On appeal, Andrade argued that the Board violated his due process rights by preventing him from putting forth a full defense and by not giving him notice that his ability to testify for the prosecution in future police cases was an issue.

He also alleged that Milwaukee County Circuit Judge Jeffrey A. Conen erred when he refused to stop the Fire and Police Commission from taking inconsistent positions in its litigation with him and with Brown. 

The appeals panel rejected all of those arguments.

"Although there is a superficial commonality that all of the officers’ records were impacted by Brown’s arrest, the discipline imposed for the other officers’ conduct during Brown’s arrest was not relevant to the question of the just cause of disciplining and discharging Andrade for his social media posts," White wrote. "Therefore, the examiner’s decision was reasonable to exclude evidence of the other officers’ discipline."

The panel agreed with the Fire and Police Commission that the DA's decision not to use Andrade in future cases was a result of the social media posts.

Andrade’s argument fails because the record makes clear that the reason he was discharged was his conduct on social media, conduct that triggered the DA’s officer to determine that calling Andrade as a witness would require...disclosures and that the DA’s office would not call him as witness," White wrote.

"Andrade’s conduct undermined the confidence in the community with regard to his credibility as a witness and discredited the department. We conclude that the Board proceeded on a correct theory of law," she added.

The appeals panel also ruled that Andrade did not provide enough evidence to uphold his contention that the city took inconsistent positions in litigation and found that the commission issued its ruling in a timely manner.