MADISON, Wis. (Legal Newsline) - A police officer who was fired over offensive Facebook posts after he arrested former Milwaukee Bucks player Sterling Brown doesn’t have a constitutional right to get his old job back, the Wisconsin Supreme Court ruled.
Milwaukee police officers arrested Brown in January 2018, using force and shocking him with a Taser. Officer Erik Andrade transported Brown to the police station and later that day posted on Facebook: "Nice meeting Sterling Brown of the Milwaukee Bucks at work this morning! LOL#FearTheDeer." (“Fear the Deer” is a popular fan slogan for the Bucks)
Brown sued the city, citing the posts as evidence Andrade and other officers could engage in "unlawful attacks and arrests of African Americans without justification" or a "fear of real discipline." The Milwaukee Journal Sentinel reported the lawsuit and the next day Internal Affairs informed Antrade he may have violated police policies including “competence,” “integrity” and a prohibition against public speech that is “disruptive to the mission of the department.”
In August 2018 the Department officially charged Andrade with violating department policy, forcing Chief Alfonso Morales to decide whether Andrade was guilty and what discipline to impose. The Milwaukee District Attorney’s Office told Morales that Andrade’s posts would affect his credibility as a witness and would be considered “Brady material” that must be disclosed to criminal defendants as potential evidence of bias and untrustworthiness.
The DA’s office also said Andrade would be placed on a list of officers never to be called as a witness.
Chief Morales decided that would make Andrade the equivalent of Mark Furhman, the officer in the O.J. Simpson trial whose credibility was undermined by a history of using racist terms.
Andrade was fired on Sept. 12, 2018. The Milwaukee Board of Fire and Police Commissioners upheld the firing, as did a court of appeals.
Andrade then appealed to the Wisconsin Supreme Court, where he fared no better. In an April 30 decision, the court ruled Andrade had sufficient notice of the charges against him and upheld his firing.
“The complaint Chief Morales filed with the Board was simple, straightforward, and consistent with the statute,” the court ruled in an opinion by Justice Brian Hagedorn.
Justice Annette Kingsland Ziegler dissented, saying that while she doesn’t condone Andrade’s behavior and he may have deserved to be fired, he was denied his constitutional right to notice of the charges against him.
“While the district attorney alleged that Andrade would have been unable to be used as a witness going forward, Andrade did not have a reasonable opportunity to challenge that assertion prior to being terminated,” Justice Ziegler wrote.
Black Leaders Organizing for Communities, the League of Wisconsin Municipalities and the Milwaukee Police Association all filed friend-of-the-court briefs in this case.