When an Oelwein Police Department reserve officer “mooned” and pointed a gun at a Hillary Clinton yard sign, was it legally protected free expression or misconduct meriting disciplinary action?
That’s the debate after a photo of the act surfaced on social media last week.
The incident has prompted an "internal review," Oelwien Police Chief Jeremy Logan said.
Whether reserve officer Jay Perkins should face discipline depends on whether he was serving in an official capacity when the photo was taken, according to legal experts.
The U.S. Supreme Court has ruled that a police officer can be subject to discipline for political speech or behavior if it's done in an "official capacity," said Rita Bettis, legal director for the American Civil Liberties Union of Iowa. "So here, the factors like whether the officer was on duty or in uniform may play an important part of the analysis," she said.
Perkins is not wearing a police uniform in the photo. He is grinning widely with his black pants hanging just below his exposed buttocks, which are pointed at a blue Clinton/Kaine sign.
Perkins, who has volunteered for the department for more than 10 years, was not on duty when the photo was taken, Logan wrote Monday in an email to The Des Moines Register. The firearm the reserve officer was holding in the photo was not issued or owned by the eastern Iowa department, the chief wrote.
Logan wrote that he had "addressed the matter," but he did not respond to a follow-up email about what discipline, if any, could be brought in the incident. Perkins is still pictured and listed as a reserve officer on the department's website.
"While we support the right of freedom of speech and expression, we encourage our staff to do so with professionalism," Logan said. "Jay Perkins has been a dedicated and sound volunteer for our community and this action does not reflect what we have seen from him in prior years. We take matters such as this seriously as we understand the impact that this can have on the trust that is placed upon us by the public."
Police officers have the same rights as any other citizen to speak out publicly about politics without fearing retribution. Those rights are guaranteed by the First Amendment to the U.S. Constitution, which protects the freedoms of speech, the press and religion.
However, officers can be viewed as representatives of a department, even when not in uniform, said Sgt. Paul Parizek, a spokesperson for the Des Moines Police Department. Parizek has a rule he's often used in training new officers: "As soon as you tell someone you’re a cop, or someone knows you’re a cop, all the cop rules apply," he said.
If he worked in Des Moines, Perkins could be subject to discipline under the department's standard of conduct policy, Parizek said. That policy requires that officers represent themselves in "a professional manner at all times."
Otherwise, police officers who are not on duty are allowed to engage in political discussions and also have candidate signs in their yards, Parizek said.
Perkins could not be reached by a reporter seeking a comment on the controversy. Oelwein Mayor Peggy Sherrets declined to speak with a reporter at length about the issue. "I think the people that need to know know what's going on," she said.
Residents of the city of about 6,400 offered mixed opinions about the appropriateness of the photo in interviews with KWWL. "I don't know, everyone has a right to an opinion," resident Chris Baker told a journalist with the TV station.