On Monday, the state Supreme Court will hear oral arguments in the case of a Milwaukee police officer who was fired after an altercation with basketball player Sterling Brown.
The incident was in 2018, when Brown was playing for the Bucks.
Police confronted Brown for parking across two handicapped spaces in a Walgreens lot. He says he was waiting for a citation when the situation escalated. Officers took Brown to the ground and used a stun gun when he didn’t immediately remove his hands from his pockets. He was arrested but not charged.
Brown sued the city, arguing that police used excessive force and targeted him because he’s Black.
After an investigation, the officers were disciplined. But only one of them, Erik Andrade, was fired for his use of social media in the wake of the altercation.
Andrade posted this message on Facebook: “Nice meeting Sterling Brown of the Milwaukee Bucks at work this morning! Lol #FeartheDeer.”
At the time of Erik Andrade’s termination, then-Milwaukee Police Chief Alfonso Morales said Andrade violated the department’s code of conduct. Andrade appealed to the Fire and Police Commission, which upheld his termination. So did an appeals court.
His case before the state Supreme Court names the Milwaukee Board of Fire & Police Commissioners as the respondent. His legal team is presenting two issues. The first is whether Morales deprived Andrade of due process by failing to provide an explanation of evidence supporting his decision to discharge him. The second is whether the chief deprived Andrade of due process by failing to comply with a state statute regarding notice of discharge or suspension.
Morales charged Andrade with violating two core values of the police department’s Code of Conduct: one for competence referencing standard operating procedures for using social networking sites and the other for integrity.
To get some insight into Andrade’s argument that he was deprived due process, I spoke with Ed Fallone, Associate Professor at Marquette University Law School, and a former Fire and Police Commission board member. Fallone was not on the board at the time Andrade was fired.
He describes how someone might argue they'd been denied due process.
"One of the standard arguments in a due process case is that you didn't have notice in advance that your conduct might subject you to discipline," he says.
"Now the Milwaukee Police has a social media policy, they have a code of conduct, they have explicit requirements that all officers conduct themselves in a way that does not undermine the community’s view of the police in a way that exhibits integrity honesty. And so, you know, given that these are written policies in place available to all officers when they're hired, they're all trained as to the existence of these policies, I find it unlikely that any argument that you know he had no idea that posting on social media comments about this incident might subject him to possible discipline," he says. "He should have been on notice you can't go social media and post this way."
Fallone says Andrade could also argue he wasn’t given the opportunity to present evidence that explained his conduct.
He says before an officer is terminated, they would be given notice of termination, be able to appeal the notice to the Fire and Police Commission, have a hearing, and then appeal any decision to the circuit courts. Fallone says all of that happened.
"So, that just leads me to believe that the argument that he’s going to make in front of the Supreme Court is likely not that I failed to have notice or I failed to have an opportunity to be heard but rather that these written policies that he was given notice of and that were followed are somehow falling short of the standard the constitution requires," Fallone says. "And that would be that somehow the policies and the notice are insufficient to protect his constitutional rights."
Fallone says that’s a tough argument for public employees to make because the U.S. Supreme Court recognizes public employees play a larger role than the average employee.
"They represent a government institution, and that government institution has its own interest and efficiency and reputation, relationship with a community," Fallone says. "If the actions of public employees bring into disrepute the public office, the workings of government then you know government does have the ability to discipline and fire employees who make the job of government more difficult."
Fallone thinks Andrade’s argument faces an uphill battle.
Andrade’s termination wasn’t the only fallout of the police altercation with Sterling Brown. The incident led to Brown’s $750 thousand settlement with the city and demands for police reform.
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