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Houston officer who questioned police staffing files free speech suit after he was forced out

December 19, 2018

A Houston patrol officer who went public with concerns about police staffing and was removed from duty has filed a federal civil rights suit alleging the department violated his free speech rights.

The unusual lawsuit by ex-officer, Kenneth Mitchell, targets HPD Chief Art Acevedo and two top officials in the department, for yanking him from his assignment after he questioned the closing of the Willowbrook neighborhood substation. Mitchell wrote a civic leader that the department was “gambling” with the safety of the neighborhood.

A free speech expert said there have maybe been about 50 such cases over the last 15 years around the nation.

Mitchell, 35, of Spring, who is now employed as a lawyer, is seeking damages to recover his HPD retirement, the loss of health insurance for his family and mental anguish..

Police commanders removed the senior officer to dispatch, considered a demotion, after Mitchell sent an email to a civic leader with facts and figures illustrating the impact of HPD’s shuttering of the Willowbrook storefront station would have on response times. Supervisors initiated an internal investigation and told him told him the email caused a public alarm, in violation of department policy.

HPD eventually permitted the officer to choose between a dishonorable discharge or resigning, and Mitchell chose to leave in July.

Mitchell’s lawyer, Randall Kallinen, said while it may be inconvenient that police officers have opinions, the First Amendment supersedes police policy.

“Police officers do not lose their right to freedom of speech when they get hired by the city of Houston,” Kallinen said. “Who better to be able to inform the public about policy issues effecting safety than the police officers working the streets.”

Mitchell did not violate his duties when he authored the email because they had nothing to do with writing emails or analyzing data on response times, his lawsuit argues.

A City of Houston spokesperson deferred to the police department, where spokesperson John Cannon said he could not comment on pending litigation.

Mitchell, sworn in as an officer in January 2006, was assigned to the Willowbrook area that he frequented as a child and where numerous members of his family lived and worked.

When HPD executives made the decision to close the office in January and create the North Belt Division , Mitchell opposed it, believing it would slow response times and decrease safety in the area for patrons and residents including his wife, relatives and friends. He expressed this to his supervisors.

On Mar. 22, 2018, Mitchell also sent an email about his concerns to Larry Lipton, president of the Northwest Chamber of Commerce, who had asked for documentation of the problem. The email was written during his off-hours from his personal email address, and detailed how the staffing will changed the day-to-day policing in the neighborhood.

Mitchell writes that, “Management is just gambling, betting that nothing will happen or the incidents that hold will not progress.” He says the community has gotten the short end of the stick because more resources are needed in Greenspoint.

“An active shooter or serious incident will happen in Willowbrook,” the email says. “No one will question the coverage, because eventually there will be a response.”

There have been just a handful of cases each year involving free speech by law enforcement officers over the past 15 years, said Chip Babcock, a Houston-based partner at the Jackson Walker law firm, who specializes in free speech cases. He estimated that the cases have gone both ways, depending on the circumstances of the speech.

Babcock, who has no connection to this case, said he didn’t think causing a public alarm is an argument that will hold.

“There are a lot of things that are alarming to the public but nevertheless need to be said,” he said. “You can’t defend the policy just on the grounds that somebody’s going to be worried about it.”

Historically, courts have given cities more latitude to restrict officials’ speech in the interest of keeping departments running smoothly.

“The real question is, does this police officer have a right to say what he said?” Babcock said.

gabrielle.banks@chron.com

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