A former Pleasanton police officer can't sue the city and its police chief for allegedly violating his constitutional rights by investigating and firing him, allegedly over questionable social media posts, a federal judge has ruled, even though the investigation and termination came quickly after officials learned the officer had attended a "Stop the Steal" rally in support of former President Donald Trump.
Last month, U.S. District Judge Araceli Martinez-Olguin ruled in favor of the city of Pleasanton and former Pleasanton Police Chief David Swing in a lawsuit brought by ex-Pleasanton officer Peter McNeff.
Martinez-Olguin is an appointee of President Joe Biden.
According to court documents, McNeff had served as a police officer in Pleasanton in Alameda County since 2015.
However, his career within the department came to a sudden end in early 2021.
According to court documents, McNeff and his wife attended a "Stop the Steal" rally on Jan. 6, 2021, in Sacramento in support of then-President Trump's attempt to halt the inauguration of Biden over accusations of mass election fraud.
The court documents indicate McNeff attended the rally on his personal time and in civilian clothes. However, McNeff posted a photo of himself and his wife at the rally to his personal Facebook page.
Another officer then notified Chief Swing and other leaders of McNeff's attendance at the rally and accused McNeff of being a member of the "Proud Boys" white supremacist organization.
According to court documents, the department took no action in response to those accusations.
However, shortly after that decision, another officer sent an anonymous complaint to city officials, accusing McNeff of violations of city policies in his social media posts.
Those accusations then resulted in swift action, as Swing "immediately relieved McNeff of his duties and placed him on leave."
In March 2021, the department launched a formal internal affairs investigation and ultimately fired him, citing violations of city and department policies.
Swing retired as Pleasanton Police Chief in April 2021 and took the position as the executive director of the East Bay Regional Communications System Authority.
McNeff responded to his termination with a lawsuit, asserting the investigation and termination were illegal and retaliatory, allegedly in response to his disfavored political activities. McNeff asserted the city's claims that the termination was in response to policy violations was essentially a pretense to produce an outcome that could withstand a lawsuit.
In federal court, Judge Martinez-Olguin said the actions indeed could withstand McNeff's legal challenge.
In her ruling, the judge said McNeff failed to demonstrate that his termination was unconstitutional retaliation for his First Amendment political speech.
The judge said it was enough that the city merely could point to another possible reason for the sudden actions taken against McNeff in the days following his attendance at the Trump rally.
The judge said "the facts presented in this case appear to fall squarely in line with (prior court rulings) that the government defendants' allegedly retaliatory actions need not be purehearted so long as the government actor has an alternate basis for taking the challenged action."
"... McNeff's concession that Chief Swing had another rationale for placing him on leave and initiating an investigation into his social media history dooms his claim that Defendants retaliated against him for his rally attendance," the judge said.
The judge further ruled the city can't be held liable for the actions against McNeff because, even though Chief Swing launched the disciplinary actions quickly after McNeff's attendance at the political rally, the final decision for McNeff's termination fell to the city manager. And the judge said McNeff presented no evidence that the city manager knew of McNeff's attendance at the rally, because the stated reason for McNeff's termination was violations of city and department social media policies.
McNeff has appealed the ruling to the U.S. Ninth Circuit Court of Appeals.
McNeff is represented by attorneys Scott J. Street and John W. Howard, of JW Howard/Attorneys Ltd., of Pasadena and San Diego.
The city of Pleasanton defendants have been represented by attorneys Jesse J. Maddox and Nicholas M. Grether, of Liberty Cassidy Whitmore, of Fresno.