October 23, 2012

Q and A on City of Ontario v. Quon with Erwin Chemerinsky

Q and A on City of Ontario v. Quon with Erwin Chemerinsky

Can you briefly review how this case got to the Court?
The case is a civil suit brought by a City of Ontario, California, police officer (and others) whose text messages, which were sent over a department issued pager, were read by a supervisor. The plaintiffs sued in federal court claiming that the reading of their messages violated their privacy rights. The City argued that officers signed a written statement that they had no expectation of privacy in the use of city equipment and that it could be used only for official business. The officer, Jeff Quon, argued that he had been promised by his lieutenant that his messages would not be read so long as he paid for any overuse. The federal district court found that the plaintiffs had a reasonable expectation of privacy, but a jury decided that the search was conducted in a reasonable manner and did not violate the Fourth Amendment. The Ninth Circuit reversed finding that the reading of the messages violated the plaintiffs’ reasonable expectation of privacy under the Fourth Amendment.

The main issues?
The central question is whether the Fourth Amendment was violated by the reading of the text messages in light of the department’s policy that there should be no expectation of privacy and in light of the lieutenant’s saying that the messages would not be read so long as officers paid for their overuse. The Court had many things to consider in deciding this: What are the Fourth Amendment rights of government employees in using electronic equipment? How is a reasonable expectation of privacy to be determined? What, if any, are the privacy rights of others who communicate with a government employee (here they included Quon’s wife and his mistress).

How did the oral argument go? Which if any side do you think should have come out feeling good about their hour in Court?
The questioning indicated a Court that was much more sympathetic to the City than to Quon. Many of the questions stressed the City’s express policy that officers should have no expectation of privacy. Justice Breyer’s line of questioning may be key: he focused on the jury’s finding that even if there was a reasonable expectation of privacy, the search was carried out in a reasonable manner.

What do you think the Court saw as the strongest argument?
I think that many of the justices focused on this being a police officer. I think it is quite possible that the Court will rule narrowly based on the facts of this case and it being a police officer, rather than issuing a broader ruling about the privacy and Fourth Amendment rights of government employees. Several of the justices seemed to give great weight to the needs of police departments in monitoring officer behavior and also the reduced expectation of privacy (since such communications are available through public records requests and discovery).

Which argument seemed to get the least traction with the Justices?
I was surprised that there was not more focus on the expectation of privacy of the others who were communicating with Quon. Their privacy rights raise difficult questions. If I write a letter to someone, I don’t realistically have an expectation of privacy as to that letter. But if I have a phone conversation, I do. How does text messaging fit?

Were there any questions or discussions that surprised you?
I was very surprised that Chief Justice Roberts seemed the most sympathetic to Quon and his privacy interests. But I also know not to read too much into questions from oral arguments.

What was the media coverage of the argument like? If there was any, do you think it was a fair representation?
The media coverage saw a Court likely to rule in favor of the City of Ontario and also likely to rule narrowly.

Any guesses on how the case will be resolved? Did any of the justices show their hand
Predictions are always dangerous, but I think that the Court will decide narrowly rather than broadly, ruling on the facts of this case. If they rule in favor of the City, which the questioning suggested was most likely, the decision is likely to focus on police departments and the specific policy of this department. If the Court rules for Quon, it is likely to stress his reasonable expectation of privacy based on the assurance from his lieutenant that his messages would not be read if he paid for the overuse.