FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHARLES MOSER,

Plaintiff-Appellant,

and

JOHN SABATINI,

Plaintiff,

v.

LAS VEGAS METROPOLITAN POLICE 

DEPARTMENT; DEVIN BALLARD;

PATRICK NEVILLE,

Defendants-Appellees.

No. 19-16511

D.C. Nos.

2:17-cv-01012-

JAD-NJK

2:17-cv-01704-

JAD-NJK

OPINION

Appeal from the United States District Court

for the District of Nevada

Jennifer A. Dorsey, District Judge, Presiding

Argued and Submitted September 3, 2020

Pasadena, California

Filed January 12, 2021
2 MOSER V. LVMPD

Before: Eugene E. Siler,* Marsha S. Berzon, and

Kenneth K. Lee, Circuit Judges.

Opinion by Judge Lee;

Dissent by Judge Berzon

SUMMARY**

Civil Rights

The panel reversed the district court’s summary 

judgment in favor of the Las Vegas Metropolitan Police 

Department and remanded in an action brought by a former 

SWAT sniper who alleged that the Department 

unconstitutionally retaliated against him for his protected 

speech when it dismissed him from the SWAT team after he 

commented on Facebook that it was a “shame” that a suspect 

who had shot a police officer did not have any “holes” in 

him. 

The district court construed plaintiff’s statement as 

advocating unlawful violence and ruled that the 

government’s interest in employee discipline outweighed 

plaintiff’s First Amendment right under the balancing test 

for speech by government employees, set forth in Pickering 

v. Bd. of Ed. of Twp. High Sch. Dist., 391 U.S. 563 (1968). 

* The Honorable Eugene E. Siler, United States Circuit Judge for the 

U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
MOSER V. LVMPD 3

The panel first determined that plaintiff’s speech 

addressed an issue of public concern under the Pickering

framework, that plaintiff spoke as a private citizen, not a 

public employee, and that he was demoted because of his 

speech. The panel held that the district court erred in 

granting summary judgment for the government because 

there was a factual dispute about the objective meaning of 

plaintiff’s comment: was it a hyperbolic political statement 

lamenting police officers being struck down in the line of 

duty, or, as the Department interpreted, a call for unlawful 

violence against suspects? Another factual dispute existed 

over whether plaintiff’s comment would have likely caused 

disruption in the police department. These factual disputes 

had to be resolved before the court could weigh the 

competing considerations of plaintiff’s First Amendment 

rights against the government interest in workforce 

discipline under the Pickering balancing test.

Dissenting, Judge Berzon stated that plaintiff waived any 

argument about the meaning of his Facebook comment and 

because the Department’s interpretation of plaintiff’s 

statement was by far more reasonable than plaintiff’s 

proffered alternative, Judge Berzon would affirm the district 

court’s judgment.
4 MOSER V. LVMPD

COUNSEL

Adam Levine (argued) and Daniel Marks, Law Office of 

Daniel Marks, Las Vegas, Nevada, for Plaintiff-Appellant.

Jackie V. Nichols (argued) and Nick D. Crosby, Marquis 

Aurbach Coffing, Las Vegas, Nevada, for DefendantsAppellees.

OPINION

LEE, Circuit Judge:

Social media has allowed Americans to connect with 

friends in far-flung places and to share their opinions on 

topics both mundane and momentous. But social media can 

also tempt people to impulsively make inflammatory 

comments that they later regret. And even worse for them, 

employers often react by firing or punishing them for their 

ill-advised remarks.

Charles Moser is one of those people. A Las Vegas 

SWAT sniper, Moser commented on Facebook that it was a 

“shame” that a suspect who had shot a police officer did not 

have any “holes” in him. After the police department 

dismissed him from the SWAT team, Moser sued, alleging 

violation of his First Amendment right. He contended that 

his comment suggested only that the police officer should 

have fired defensive shots. The district court, however, 

construed Moser’s statement as advocating unlawful 

violence, and ruled that the government’s interest in 

employee discipline outweighs Moser’s First Amendment 

right under the Pickering balancing test for speech by 

government employees.
MOSER V. LVMPD 5

The district court erred in granting summary judgment 

for the government because there is a factual dispute about 

the objective meaning of Moser’s comment: was it a 

hyperbolic political statement lamenting police officers 

being struck down in the line of duty — or a call for unlawful 

violence against suspects? Another factual dispute exists 

over whether Moser’s comment would have likely caused 

disruption in the police department. These factual disputes 

had to be resolved before the court could weigh the 

competing considerations under the Pickering balancing 

test. We thus reverse the grant of summary judgment and 

remand.

BACKGROUND

In 2000, Charles Moser, a former Navy SEAL, joined the 

Las Vegas Metropolitan Police Department (“Metro”), and 

became a member of the SWAT team in 2006. Moser served 

as the Assistant Team Leader of his SWAT unit and acted as 

a sniper.

In 2015, someone shot a Metro police officer at the 

Emerald Suites on Las Vegas Boulevard. Metro police 

officers later found and arrested that suspect. After seeing 

news of the assailant’s capture, Moser — while off-duty at 

home — commented on a friend’s Facebook post linking an 

article about the shooting:
6 MOSER V. LVMPD

Moser’s December 17, 2015 comment said, “Thanks to 

a Former Action Guy (FAG) and his team we caught that 

asshole. . . It’s a shame he didn’t have a few holes in 

him. . .”1

1 Moser said that “Former Action Guy (FAG)” is a self-deprecating 

term coined by a former SWAT colleague who switched to a different 

unit in Metro. Moser’s use of that derogatory term is not at issue in this 

case.
MOSER V. LVMPD 7

An anonymous tipster alerted Metro’s internal affairs 

department to this Facebook comment, prompting an 

internal investigation. During his interview with Metro 

investigators on February 8, 2016, Moser admitted his 

comment was “completely inappropriate” but explained that 

he intended to express his frustration that the suspect had 

“basically ambushed one of our officers” and that “the 

officer didn’t have a chance to defend himself.” He also said 

that he had removed that comment by the time of this 

interview.

Captain Devin Ballard and Deputy Chief Patrick Neville 

transferred Moser out of SWAT and put him back on patrol, 

finding that Moser’s Facebook comment showed he had 

become “a little callous to killing.” Moser’s supervisors 

testified that snipers “are held to a higher standard” because 

they toil in difficult and stressful situations. Internal affairs 

also determined that Moser’s comment violated the 

department’s social media policy and found that his 

Facebook page had information identifying him as a Metro 

sniper. Moser filed a grievance report, requesting that he 

receive a verbal reprimand rather than a transfer with a pay 

decrease. The Labor Management Board denied Moser’s 

grievance and upheld the transfer.

Moser sued Metro, Captain Ballard, and Deputy Chief 

Neville for First Amendment retaliation, seeking damages 

under 42 U.S.C. § 1983 and injunctive relief. He alleged that 

his disciplinary transfer was unconstitutional retaliation for 

his protected speech. Metro and Moser both moved for 

partial summary judgment. Metro did not dispute that Moser 

made that comment as a private citizen and that it addressed 

an issue of public concern, but it argued that Moser’s 

comment eroded public trust and exposed Metro to legal 

liability.
8 MOSER V. LVMPD

The district court held that Metro’s disciplinary action 

was justified under the Pickering balancing test for speech 

by government employees. While it acknowledged that 

Moser’s statement addressed a “public concern,” the district 

court said it is “difficult to discern what message Moser was 

attempting to convey” and ultimately believed that Moser 

“wanted his fellow officers to shoot (and possibly kill) the 

suspect, regardless of whether the use of deadly force (or any 

force) was necessary.” The district court thus held that 

Moser’s comment was “neither at the core nor the periphery 

of the First Amendment.” Set against this “moderate [First 

Amendment] interest” was “Metro’s prediction of likely 

future disruptions caused by Moser’s continued SWAT 

service.” Specifically, the court reasoned that, if more 

members of the public read Moser’s post, they might 

question Moser’s fitness as a SWAT member. The court 

also reasoned that “any future use of deadly force by Moser 

would have been more extensively scrutinized by the public 

and would more likely subject Metro to suit.” The court 

determined that Metro’s interest in employee discipline 

outweighed Moser’s “moderate” free speech interest. The 

court granted summary judgment for Metro and denied 

summary judgment for Moser. Moser timely appealed.

STANDARD OF REVIEW

We review de novo a district court’s grant of summary 

judgment. See Devereaux v. Abbey, 263 F.3d 1070, 1074 

(9th Cir. 2001) (en banc). Federal Rule of Civil Procedure 

56(c) authorizes summary judgment where the moving party 

shows no genuine issue of material fact. The Court views 

the facts and inferences drawn from the facts in the 

nonmovant’s favor. See T.W. Elec. Serv., Inc. v. Pac. Elec. 

Contractors Ass’n, 809 F.2d 626, 631–32 (9th Cir. 1987).
MOSER V. LVMPD 9

ANALYSIS

I. Under the Pickering test, courts must balance a 

government employee’s free speech rights with 

government efficiency.

The Supreme Court has established a framework to 

balance the free speech rights of government employees with 

the government’s interest in avoiding disruption and 

maintaining workforce discipline. See Pickering v. Bd. of 

Ed. of Twp. High Sch. Dist., 391 U.S. 563 (1968). Under the 

Pickering framework, the plaintiff first has to establish that 

“(1) []he spoke on a matter of public concern; (2) []he spoke 

as a private citizen rather than a public employee; and (3) the 

relevant speech was a substantial or motivating factor in the 

adverse employment action.” Barone v. City of Springfield, 

Or., 902 F.3d 1091, 1098 (9th Cir. 2018).

If the plaintiff establishes this prima facie case, the 

burden then shifts to the government to show “that (4) it had 

an adequate justification for treating [its employee] 

differently than other members of the general public; or (5) it 

would have taken the adverse employment action even 

absent the protected speech.” Id. If the government does not 

meet its burden, then the First Amendment protects the 

plaintiff’s speech as a matter of law.

While the Pickering balancing test presents a question of 

law for the court to decide, it may still implicate factual 

disputes that preclude the court from resolving the test at the 

summary judgment stage. See Eng v. Cooley, 552 F.3d 

1062, 1071–72 (9th Cir. 2009) (“Although the Pickering 

balancing inquiry is ultimately a legal question . . . its 

resolution often entails underlying factual disputes. Thus we 

must . . . assume any underlying disputes will be resolved in 
10 MOSER V. LVMPD

favor of the [nonmovant].”). We now apply the Pickering 

framework to the facts here.

II. The district court erred in granting summary 

judgment for the government because factual 

disputes preclude it from assessing the Pickering 

balancing test.

At the district court and on appeal, the parties do not 

dispute any of the Pickering factors except for the fourth one 

— whether the government had adequate justification to 

treat Moser differently than members of the public. Still, we 

briefly address the other factors to provide context for 

Moser’s claims and for our analysis.

A. Moser’s speech addressed an issue of “public 

concern.”

First, the parties do not dispute that Moser’s comment 

addressed an issue of “public concern” under the Pickering 

framework. An issue is of “public concern” if it “relat[es] to 

any matter of political, social or other concern to the 

community,” Eng, 552 F.3d at 1070 (quotation marks and 

citation omitted), or “is a subject of legitimate news interest; 

that is, a subject of general interest and of value and concern 

to the public,” City of San Diego v. Roe, 543 U.S. 77, 83–84 

(2004). “Whether an employee’s speech addresses a matter 

of public concern must be determined by the content, form, 

and context of a given statement, as revealed by the whole 

record.” Connick v. Myers, 461 U.S. 138, 147–48 (1983); 

see also Johnson v. Multnomah Cty., Or., 48 F.3d 420, 425 

(9th Cir. 1995) (“[T]he employee’s motivation and the 

chosen audience are among the many factors to be 

considered in light of the public’s interest in the subject 

matter of the speech.”).
MOSER V. LVMPD 11

But not all statements of “public concern” are treated 

equally under the Pickering balancing test (as discussed 

later). While courts generally do not consider the content of 

speech under the First Amendment, courts — in the limited 

context of speech by government employees — have 

effectively established a sliding scale for how much weight 

to give to a statement of “public concern” when balancing 

the employee’s and the government’s competing interests.

B. Moser spoke as a private citizen, not a public 

employee.

Second, the parties do not dispute that Moser made his 

Facebook comment as a private citizen. See Eng, 552 F.3d 

at 1071. “Statements are made in the speaker’s capacity as 

citizen if the speaker had no official duty to make the 

questioned statements, or if the speech was not the product 

of performing the tasks the employee was paid to perform.” 

Id. (quotation marks and citations omitted). Moser was 

home and off duty using his personal Facebook account.

C. Metro transferred Moser because of his speech.

Third, the parties again do not dispute that Metro 

demoted Moser because of his Facebook comment. See id. 

Moser’s supervisors believed that his Facebook comment 

revealed “that Moser had grown callous to killing.”

D. Metro cannot prevail under the Pickering 

balancing test because there are material factual 

disputes precluding summary judgment.

Because Moser established the prima facie case, the 

burden then shifts to Metro to show that “under the balancing 

test established by Pickering, [Metro’s] legitimate 

administrative interests outweigh the employee’s First 
12 MOSER V. LVMPD

Amendment rights.” Id. (quotation marks, alterations, and 

citation omitted).2 This balancing test asks whether Metro 

was justified in treating Moser differently from the public by 

balancing “the interests of [Moser], as a citizen, in 

commenting upon matters of public concern and the interests 

of [Metro], as an employer in promoting the efficiency of the 

public services it performs through its employees.” 

Pickering, 391 U.S. at 568.

Put another way, the Pickering balancing test recognizes 

that a government employer has “broader discretion to 

restrict speech when it acts in its role as employer, but the 

restrictions it imposes must be directed at speech that has 

some potential to affect the entity’s operations.” Eng, 

552 F.3d at 1071 (quotation marks and citation omitted).

1. Moser’s First Amendment interest: There is a 

factual dispute about the meaning of Moser’s 

Facebook comment.

While the parties agree that Moser’s Facebook comment 

touched upon an issue of “public concern,” that does not end 

our inquiry into the content of his speech. Even though the 

government generally cannot consider the content of the 

speech under the First Amendment, courts have carved a 

narrow exception for speech by government employees. In 

the limited context of the Pickering balancing test, courts 

may consider the content of that speech to determine how 

much weight to give the government employee’s First 

Amendment interests. See Connick, 461 U.S. at 146–47. 

2 Metro does not try to meet its burden under the fifth Pickering 

factor (i.e., it would have taken the adverse employment action absent

the speech) because it concedes that it demoted Moser because of his 

Facebook comment.
MOSER V. LVMPD 13

Courts have thus implicitly applied a sliding scale in which 

the “state’s burden in justifying a particular discharge [or 

adverse employment action] varies depending upon the 

nature of the employee’s expression.” Id. at 150.

At the apex of the First Amendment rests speech 

addressing problems at the government agency where the 

employee works. See, e.g., McKinley v. City of Eloy, 

705 F.2d 1110, 1114 (9th Cir. 1983) (holding that speech 

criticizing police officer pay “substantially involved matters 

of public concern and was thus entitled to the highest level 

of protection”); Robinson v. York, 566 F.3d 817, 824 (9th 

Cir. 2009) (recognizing plaintiff’s strong First Amendment 

interest in speaking out about illegal conduct by public 

officials); Kinney v. Weaver, 367 F.3d 337, 361–62 (5th Cir. 

2004) (holding that law enforcement trainers had a 

“particularly weighty” and “extremely strong” First 

Amendment interest in testifying about excessive force in a 

police shooting case).

On the other hand, at least one court has suggested that 

racially charged comments that have no connection to the 

government employee’s workplace arguably receive less 

First Amendment protection under the Pickering balancing 

test for government employees. See, e.g., Grutzmacher v. 

Howard Cty., 851 F.3d 332 (4th Cir. 2017) (holding that a 

firefighter’s racially charged comment is not “of the same 

ilk” as speech by government employees about public policy 

problems in their workplace).

We thus need to analyze Moser’s speech in weighing his 

First Amendment rights against the government’s interest in 

efficiency. See Connick, 461 U.S. at 146–48. The parties do 

not, however, agree on the objective meaning of Moser’s 

statement. Metro believes that Moser’s comment advocated 

unlawful use of deadly force: Moser wished that the officers 
14 MOSER V. LVMPD

who captured the suspect would have shot him in retaliation 

for his earlier shooting of a police officer.

The district court appeared to accept Metro’s 

interpretation of Moser’s comment. The district court 

admitted that it is “difficult to discern what message Moser 

was attempting to convey,” but ultimately concluded that 

“Moser’s post conveyed that he wanted his fellow officers to 

shoot (and possibly kill) the suspect, regardless of whether 

the use of deadly force (or any force) was necessary.” Not 

surprisingly, a comment advocating unlawful violence by 

law enforcement would not be at the high end of the “public 

concern” scale. The district court thus held that Moser’s 

comment was not at the “core” of First Amendment 

protection.

Moser, however, offered a different take on his 

statement. At his interview with internal affairs 

investigators, he said that he was implying that the police 

officer who had been ambushed by the suspect — not the 

police officer who ultimately arrested the suspect — should 

have fired defensive shots. His statement then takes on a 

different meaning: He did not advocate unlawful violence, 

but rather expressed frustration — in an admittedly 

hyperbolic and inappropriate manner — at the perils of 

police officers being struck down in the line of duty. Put 

another way, Moser’s comment touches on an important 

public policy issue that falls within his personal experience.3

3 The FBI reported that in the past decade there have been over 

20,000 assaults with firearms against law enforcement officials. See

2019 Law Enforcement Officers Killed & Assaulted, Federal Bureau of 

Investigation, https://ucr.fbi.gov/leoka/2019/topic-pages/tables/table85.xls (last visited on October 20, 2020).
MOSER V. LVMPD 15

While Moser’s comment remains inflammatory even 

under his interpretation, the Supreme Court has held that the 

“inappropriate or controversial character of a statement is 

irrelevant to the question whether it deals with a matter of 

public concern.” Rankin v. McPherson, 483 U.S. 378, 387 

(1987). In Rankin, an employee at the constable’s office 

who opposed President Reagan’s policies said, “[I]f they go 

for him again, I hope they get him” upon learning of John 

Hinckley, Jr.’s attempted assassination of the President. Id.

at 381. The Supreme Court held that the First Amendment 

protected the government employee’s statement because it 

related to a public concern (President Reagan’s policies), 

despite the incendiary nature of that comment. Id. at 386–

87. Here, too, Moser’s statement — when viewed in the 

light most favorable to him under the summary judgment 

standard — could be objectively interpreted as a provocative 

political statement against police officers being shot in the 

line of duty.4

In short, a factual dispute exists over the objective 

meaning of Moser’s statement. Under Metro’s reading, 

Moser advocated unlawful violence against suspects, which 

would not be in the “core” First Amendment zone (as the 

district court found). But under Moser’s interpretation, his 

statement falls within the “core” First Amendment zone 

because it highlights the perils faced by police officers and 

the government’s failure to protect them. The district court, 

4 Metro argues that Moser’s explanation conflicts with the “plain 

meaning” of his Facebook post. But Moser’s message is objectively 

ambiguous, as the district court itself noted that it is “difficult to discern” 

the meaning of the comment. The dissent suggests that we are 

considering Moser’s subjective interpretation of his Facebook comment. 

We are not; rather, we are holding that Moser’s comment is objectively 

ambiguous, and that his interpretation of it may be a plausible and 

objective reading of it.
16 MOSER V. LVMPD

however, did not resolve this factual dispute over the 

objective meaning of Moser’s statement and instead adopted 

Metro’s reading of it. That was error.5

2. Metro’s interest in government efficiency: 

There is a factual dispute whether the 

government provided any evidence of 

predicted disruption to Metro.

On the other side of the Pickering scale, the court 

considers the strength of Metro’s interest in efficiency and 

employee discipline. Courts do not approach this issue in 

“abstract terms,” but look “to how the speech at issue affects 

the government’s interest in providing services efficiently.” 

Kinney, 367 F.3d at 362. The Supreme Court has recognized 

several factors in evaluating the impact of an employee’s 

speech on the government agency’s operation:

whether the statement impairs discipline by 

superiors or harmony among co-workers, has

5 The dissent argues that Moser waived the issue of the meaning of 

his Facebook comment. While Moser did state to the district court that 

the comment’s meaning was irrelevant as a legal matter, he repeatedly 

provided evidence from the record that supported his interpretation of 

the comment. See Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 

1031 (9th Cir. 2001) (“[T]he district court may determine whether there 

is a genuine issue of fact, on summary judgment, based on the papers 

submitted on the motion and such other papers as may be on file and 

specifically referred to and facts therein set forth in the motion papers.”) 

(emphasis added). Such evidence gave rise to a factual dispute regarding 

the parties’ interpretations of the comment. The district court clearly 

considered this dispute, as it analyzed the comment’s objective meaning 

in applying the Pickering balancing test. Thus, the issue of the 

comment’s meaning is not waived. See Cmty House, Inc. v. City of 

Boise, 490 F.3d 1041, 1054 (9th Cir. 2007) (“[E]ven if a party fails to 

raise an issue in the district court, we generally will not deem the issue 

waived if the district court actually considered it.”).
MOSER V. LVMPD 17

a detrimental impact on close working 

relationships for which personal loyalty and 

confidence are necessary, or impedes the 

performance of the speaker’s duties or 

interferes with the regular operation of the 

enterprise.

Rankin, 483 U.S. at 388 (citing Pickering, 391 U.S. at 570–

73). The Supreme Court has also acknowledged that police 

departments have heightened interests in “discipline esprit 

de corps, and uniformity.” Kelley v. Johnson, 425 U.S. 238, 

246 (1976). And the Ninth Circuit has recognized the

special need for police departments to avoid disruption to 

provide public safety. See Byrd v. Gain, 558 F.2d 553, 554 

(9th Cir. 1977).

The government can meet its burden by showing a 

“reasonable prediction[] of disruption.” Brewster v. Bd. of 

Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 979 (9th 

Cir. 1998) (quotation marks and citation omitted). But the 

government cannot rely on mere speculation that an 

employee’s speech will cause disruption. Nichols v. Dancer, 

657 F.3d 929, 933–34 (9th Cir. 2011).

6

Courts give the government employer’s reasonable 

prediction of disruption greater deference than the 

justifications used to restrict the public’s speech. Waters v. 

6 The dissent notes that the government can appropriately consider 

whether Moser’s comment reflects on his fitness for his job. But Moser’s 

fitness for his job depends on the objective meaning of his comment. If 

he encouraged unlawful violence, it certainly reflects poorly on his 

ability to serve as a SWAT officer. But if his comment was merely a 

hyperbolic statement on a public matter, then it may not. And as noted, 

we hold that the objective meaning of Moser’s Facebook comment is 

ambiguous.
18 MOSER V. LVMPD

Churchill, 511 U.S. 661, 673 (1994). But “[v]igilance is 

necessary to ensure that public employers do not use 

authority over employees to silence discourse, not because it 

hampers public functions but simply because superiors 

disagree with the content of the employees’ speech.” 

Rankin, 483 U.S. at 384. Thus, “bare assertions of future 

conflict are insufficient to carry the day at the summary 

judgment stage.” Nichols, 657 F.3d at 935 (citing Lindsey v. 

City of Orrick, Mo., 491 F.3d 892, 900 (8th Cir. 2007), 

Kinney, 367 F.3d at 363, and Andersen v. McCotter, 100 

F.3d 723, 729 (10th Cir. 1996)); see also Berger v. Battaglia, 

779 F.2d 992, 1001 (4th Cir. 1985) (“[T]hreatened 

disruption by others reacting to public employee speech 

simply may not be allowed to serve as justification for public 

employer disciplinary action directed at that speech.”).

It follows that an employer must provide some evidence 

for the court to evaluate whether the government’s claims of 

disruption appear reasonable. See Nichols, 657 F.3d at 934; 

see also Craig v. Rich Twp. High Sch. Dist. 227, 736 F.3d 

1110, 1119 (7th Cir. 2013) (“[A]n employer’s assessment of 

the possible interference caused by the speech must be 

reasonable—the predictions must be supported with an 

evidentiary foundation and be more than mere speculation.” 

(quotation marks and citation omitted)).

Courts have accepted a government employer’s 

predictions of disruption when it provided evidence that the 

community it serves discovered the speech or would 

inevitably discover it. See, e.g., Locurto v. Giuliani, 

447 F.3d 159, 183 (2d Cir. 2006) (government lawfully fired 

police officers who participated in a parade with racist 

lampooning amid local media coverage of it); McMullen v. 

Carson, 754 F.2d 936, 936–37 (11th Cir. 1985) (city 

lawfully dismissed a clerical employee who publicly 
MOSER V. LVMPD 19

identified himself as a sheriff’s office employee who also 

moonlights as a KKK recruiter); Munroe v. Cent. Bucks Sch. 

Dist., 805 F.3d 454, 473–74 (3d Cir. 2015) (city had grounds 

to dismiss schoolteacher whose blog criticizing her students 

caused outrage among parents once it was reported in the 

press); Melzer v. Bd. of Educ. of City Sch. Dist. of City of 

N.Y., 336 F.3d 185, 190–91, 200 (2d Cir. 2003) (city 

lawfully fired schoolteacher who advocated legalizing 

pedophilia after being identified in a TV news report about 

teachers who are members of NAMBLA); Craig, 736 F.3d 

at 1119 (school counselor wrote a hypersexualized advice 

book for women and dedicated it to his students, leading to 

complaints from parents).

Courts also are more likely to accept a government 

employer’s prediction of future disruption if some disruption 

has already occurred. See, e.g., Munroe, 805 F.3d at 477–78 

(relying on over 100 complaints from parents whose children 

were criticized in the teacher’s blog with demands for their 

children to be placed in a different classroom); Lumpkin v. 

Brown, 109 F.3d 1498, 1501 (9th Cir. 1997) (citing evidence 

that plaintiff’s statements about homosexuality had attracted 

media attention and “ignited a public outcry”).

In contrast, the government cannot prevail if it does not 

provide enough evidence to support the prediction of future 

disruption. See, e.g., Andersen, 100 F.3d at 729 (ruling that 

the government employer failed to “provide evidence 

sufficient to assess the character and weight of [its] 

interests”). For example, a court may discount the 

government employer’s fears of disruption if there is little 

evidence that the offending speech has been or will be 

discovered. In Rankin, the court found the law enforcement 

agency’s interests in maintaining efficiency were not 

threatened, in part because only two fellow employees heard 
20 MOSER V. LVMPD

the plaintiff make the inappropriate comment about 

President Reagan’s assassination attempt. 483 U.S. at 389.

Even where the employer provides evidence of a 

negative reaction to speech, courts require evidence that it 

will disrupt the workplace. In Lindsey, a city public works 

director was fired after speaking at public meetings and 

accusing the city council of violating the law. 491 F.3d 

at 901. The defendants provided evidence that the plaintiff’s 

speech had caused arguments and made people dislike him, 

but the court found this insufficient to grant summary 

judgment, finding no evidence that the speech impaired his 

working relationship with his fellow employees. Id.

The question thus is not whether Metro has an abstract 

interest in avoiding disruption and litigation, but whether, on 

this record, Metro could reasonably think Moser’s speech 

threatened those interests. See Kinney, 367 F.3d at 362–63.

The record here does not support the government’s 

contention that Moser’s Facebook comment would have 

caused disruption. Typically, courts credit the government’s 

claim where the challenged speech is widely known or 

reported by the press. Here, there was no media coverage of 

Moser’s comment. In fact, the record shows no evidence 

that anyone other than the anonymous tipster even saw 

Moser’s Facebook comment. Nor would most people have 

even known that Moser served as a SWAT sniper because 

nothing in his Facebook profile confirmed his employment.7 

7 The district court found that the public could have deduced 

Moser’s position as a SWAT sniper because (1) a local news article had 

previously discussed his role in shooting a suspect, and (2) his Facebook 

profile picture featured an “angry sniper” cartoon. But the fact that an 

inquisitive person could have theoretically searched Moser’s name on an 

Internet search engine does not mean that the public would do so. And 
MOSER V. LVMPD 21

And importantly, the chance that the public would have seen 

the Facebook comment remained low because Moser deleted 

that December 2015 comment by February 2016.8

Moser’s Facebook comment is like that of the plaintiff in 

Rankin, who wished that a future assassin would succeed 

against President Reagan because she opposed his policies. 

483 U.S. at 389. Both inflammatory statements touched 

upon a public issue. In both cases, the public did not see or 

hear the offending comment, which lessens the potential 

impact on the agency’s reputation or mission.

Metro also has provided no evidence to support its claim 

that Moser’s comment will expose Metro to future legal 

liability. Metro speculates that if Moser shoots someone in 

the future, the shooting will lead to a lawsuit, that Moser’s 

deleted Facebook comment would be discovered, that the 

trial judge would admit that Facebook comment as evidence, 

and that the jury would rely on the Facebook comment to 

find Metro liable. But Metro has cited no case in which such 

a long chain of speculative inferences tipped the Pickering 

balancing test in the government’s favor. Cf. Nichols, 

657 F.3d at 934 (citing Kinney, 367 F.3d at 363 for the 

Moser’s use of a cartoon image of an angry sniper hardly reveals his 

identity. Many people use avatars unrelated to their profession as their 

profile pictures, and some may have assumed he was in the military 

(indeed, Moser was a former Navy SEAL).

8 This does not mean that the government must wait until the media 

or a critical mass of people notices the challenged speech. Some 

statements may be so patently offensive (e.g., racial slurs) that the 

government can reasonably predict they would cause workforce 

disruption and erode public trust. But because Moser’s statement is 

ambiguous, it is not clear cut whether it would have caused disruption, 

and the government had to provide some evidence to support its 

prediction.
22 MOSER V. LVMPD

proposition that “engaging in Pickering balancing is not like 

performing rational basis review, where we uphold 

government action as long as there is some imaginable 

legitimate basis for it”).

In sum, material questions of fact remain as to whether 

Moser’s comment would likely disrupt Metro’s workforce 

or its reputation. See Robinson, 566 F.3d at 825 (denying 

summary judgment where there was a factual dispute about 

whether there was disruption in the police force). Put 

differently, Metro has produced no evidence to establish that 

its interests in workplace efficiency outweigh Moser’s First 

Amendment interests.

Metro’s cited cases are not to the contrary. In Dible v. 

City of Chandler, the public had discovered the police 

officer’s sex website, and multiple officers testified that the 

website had interfered with the department’s operations. 

515 F.3d 918, 923 (9th Cir. 2008). Metro also relies on 

Grutzmacher, but that case is distinguishable because 

multiple coworkers told plaintiff’s supervisors that they did 

not want to work with plaintiff after seeing his racially 

charged posts. 851 F.3d at 346. Those conversations led to 

concerns about the plaintiff’s ability to act as a supervisor 

and role model. Id. Here, Metro has provided no evidence 

of actual or potential disruption in the workplace or to the 

department’s mission.

* * * * *

As noted, the Pickering balancing test is a legal question, 

but its resolution often entails underlying factual disputes 

that need to be resolved by a fact-finder. See Eng, 552 F.3d 

at 1071. Perhaps the jury may answer a special jury verdict 

form that addresses these Pickering factual disputes, and the 

court can potentially decide the case as a matter of law based 
MOSER V. LVMPD 23

on the responses. We, however, leave it to the district court’s 

discretion in fashioning the most efficient way to resolve 

these factual disputes.

CONCLUSION

We have entrusted law enforcement with the solemn 

duty of using lawful force if necessary, and police officers 

thus must behave beyond reproach. We are also mindful that 

our society is in a self-reflective moment about excessive 

force and abuse of power by those who have taken an oath 

to protect all citizens equally and uphold the Constitution. 

But we also live in a time when a careless comment can ruin 

reputations and crater careers that have been built over a

lifetime because of the demand for swift justice, especially 

on social media. For private employers, it is their 

prerogative to take action against an intemperate tweet or a 

foolish Facebook comment. But when the government is the 

employer, it must abide by the First Amendment. In this 

case, we hold that the district court did not adequately 

address the objective meaning of Moser’s Facebook 

comment in its Pickering analysis to weigh Moser’s First 

Amendment right against the government’s interest in 

workforce discipline. And because of the disputed facts 

here, the district court erred in granting summary judgment 

for Metro. The district court’s decision granting summary 

judgment for Metro is REVERSED and the case is 

REMANDED.
24 MOSER V. LVMPD

BERZON, Circuit Judge, dissenting:

I respectfully dissent.

The majority identifies two factual disputes, both related 

to the meaning of Charles Moser’s Facebook comment, 

which it believes should have prevented the district court 

from granting summary judgment. Specifically, the majority 

holds that the meaning of Moser’s statement is ambiguous 

and that, as a result, Metro needed to provide some evidence 

of disruption to the workplace. But Moser conceded to the 

district court, more than once, that there was no genuine 

issue of material fact about the meaning of his comment. 

Further, the majority does not explain how, regardless of 

waiver, evidence of Moser’s private, subjective meaning 

alone can make his public statement objectively ambiguous. 

Nor does it properly address whether Metro’s interpretation 

of Moser’s comment, ambiguous or not, was reasonable, the 

touchstone of the Pickering balancing test. Because Moser 

waived any argument about the meaning of his Facebook 

comment and because Metro’s interpretation of Moser’s 

statement was by far more reasonable than Moser’s 

proffered alternative, I would affirm the district court’s 

judgment.

I

The majority takes up Moser’s argument on appeal that, 

“[i]n conducting the Pickering balancing test,” the district 

court’s conclusion that the police department’s interests as 

an employer outweighed Moser’s First Amendment interests 

as a citizen was “based upon an erroneous assumption” 

about the intended meaning of his Facebook comment and 

“ignored the evidence in the record.” Specifically, the 

district court wrote as part of the Pickering balancing test

that “Moser’s post conveyed that he wanted his fellow 
MOSER V. LVMPD 25

officers to shoot (and possibly kill) the suspect, regardless of 

whether the use of deadly force (or any force) was 

necessary.” Sabatini v. Las Vegas Metro. Police Dep’t, 

369 F. Supp. 3d. 1066, 1092 (D. Nev. 2019). Moser does not 

on appeal contest the reasonableness of this understanding 

of what he said. Instead, Moser asserts that his Facebook 

comment, although “inappropriate,” was actually meant to 

express “his regret that the ambushed officer did not get off 

any defensive shots.” As evidence of this alternative 

meaning, Moser points to his interview with Metro’s internal 

affairs department regarding his Facebook comment.

In response, Metro and the individual defendants argue 

that “[t]o the extent Moser claims that a genuine issue of 

material fact [regarding the meaning of his Facebook 

comment] exists and precludes summary judgment, Moser 

failed to raise this argument below and, thus, has waived his 

ability to assert it for the first time on appeal.” That 

contention is correct and should be dispositive of this appeal.

In his motion for summary judgment, Moser set forth the 

relevant facts, which included the finding in Metro’s 

administrative Adjudication of Complaint that Moser’s

Facebook comment “would . . . tend to negatively impact the 

Department’s ability to serve the public, would impede the 

performance of [Moser’s] duties in SWAT, and thus, has 

made [him] ineffective in [his] current assignment.” 

Importantly, Moser did not advance his alternative 

interpretation of his Facebook comment in his statement of 

undisputed facts filed with his summary judgment motion. 

And, when discussing the merits of his motion, he wrote the 

following:

The Defendants actually misunderstood 

Moser’s comment. The statement that it was 

“too bad” that the assailant did not have 
26 MOSER V. LVMPD

“holes in him” was a reference to the fact that 

the Officer who was shot did not get off any 

defensive shots in connection with his being 

ambushed. However, for purposes of the 

First Amendment the Defendant’s 

misunderstanding is irrelevant.”

(Emphasis added and citation omitted.) Rather than argue 

that there was a disputed issue of material fact about the 

meaning of his Facebook comment, Moser argued that there 

was an “absence of actual disruption.”

Similarly, in his opposition to the defendants’ motion for 

summary judgment, Moser reiterated that “[t]he relevant 

undisputed material facts . . . are contained within Moser’s 

Motion for Partial Summary Judgment,” and that the 

different meanings attributed to his Facebook comment did 

not matter:

As set forth by the citation to the record in 

Footnote 5 to Moser’s Motion for Partial 

Summary Judgment (Doc. #38), the 

Defendants actually misunderstood Moser’s 

statement. His comment regarding the 

suspect not having any “holes” was a 

statement regretting the fact that the 

ambushed officer did not get off any 

defensive shots. However, the 

misunderstanding by the Defendants is 

irrelevant to the First Amendment analysis.

(Emphasis added.)

Finally, in his motion for reconsideration by the district 

court, Moser did not raise the meaning of his Facebook 

comment as a disputed factual issue. Instead, Moser argued 
MOSER V. LVMPD 27

that the district court overlooked a different factual dispute, 

concerning whether Facebook readers could discern that 

Moser was a police officer for Metro.

The majority acknowledges in a footnote that “Moser did 

state to the district court that the comment’s meaning was 

irrelevant as a legal matter,” but nonetheless holds that “the 

issue of the comment’s meaning is not waived” because 

Moser “provided evidence from the record that supported his 

interpretation of the comment.” Opinion at 16 n.5. But this 

reasoning fails to recognize the importance of Moser’s 

concession and allows him to have it both ways—to both tell 

the district court that a dispute is legally irrelevant, so that 

Metro had no reason to put forth evidence concerning the 

statement’s meaning, but to also preserve the issue for appeal 

in case the district court ruled against him.

Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026 (9th 

Cir. 2001), demonstrates why reversing the district court’s 

grant of summary judgement on the basis that multiple 

meanings could be attributed to the Facebook comment is 

inappropriate. In Carmen, the plaintiff-appellant argued on 

appeal that the district court’s grant of summary judgment 

should be reversed because evidence not referenced in the 

summary judgment papers in the district court revealed a 

genuine issue of material fact. The panel held that, in such a 

situation, “[t]he district court need not examine the entire file 

for evidence establishing a genuine issue of fact, where the 

evidence is not set forth in the opposing papers with 

adequate references so that it could conveniently be found.” 

Id. at 1031. The panel gave two reasons for its decision: 

First, to hold otherwise would place an unmanageable 

burden on the district court. See id. Second, to hold 

otherwise would be “profoundly unfair to the movant,” who 
28 MOSER V. LVMPD

would be “denied a fair opportunity to address the matter in 

the reply papers.” Id.

In this case, Moser not only failed to identify the 

meaning of his Facebook comment as a disputed issue of 

material fact but told the district court up front that, despite 

the parties’ different interpretations of his comment, that 

issue was legally irrelevant. As a result, the district court had 

no reason to determine whether the meaning of the Facebook 

comment presented a genuine dispute of fact material to the 

Pickering balancing test. And the defendants-appellees had 

no reason either to submit evidence as to how the Facebook 

comment was most likely to be understood, including its 

context and objective meaning, or to argue that Moser’s 

professed intended meaning in making the comment was 

irrelevant.

The majority overlooks these consequences of Moser’s 

waiver when it explains that “because Moser’s statement is 

ambiguous . . . the government had to provide some 

evidence to support its prediction.” Opinion at 21 n.8. As I 

shall explain shortly, the notion that the statement was 

ambiguous is far-fetched, and, more importantly, under our 

precedent, the relevant question is not whether the statement 

is conceivably ambiguous but whether Metro reasonably 

determined how it would be understood by others. In any 

event, in this circumstance, where no exceptional 

circumstances explain why the issue was not raised to the 

district court, “appellants may not upset an adverse summary 

judgment by raising an issue of fact on appeal that was not 

plainly disclosed as a genuine issue before the trial court.” 

Int’l Union of Bricklayers & Allied Craftsman Local Union 

No. 20, AFL-CIO v. Martin Jaska, Inc., 752 F.2d 1401, 1404 

(9th Cir. 1985).
MOSER V. LVMPD 29

II

Moser was quite correct, for two intertwined reasons, 

when he twice informed the district court that the parties’ 

disagreement over the meaning of his Facebook comment 

was irrelevant to the outcome of the Pickering balancing test.

First, under settled precedent, the police department 

could rely when deciding whether to retain Moser in his 

SWAT position on what it understood Moser to have meant 

or what he would be understood by others to have meant, 

provided that such interpretations were reasonable. In 

conducting the Pickering balancing test, “courts must give 

government employers ‘wide discretion and control over the 

management of [their] personnel and internal affairs. This 

includes the prerogative to remove employees whose 

conduct hinders efficient operation and to do so with 

dispatch.’” Brewster v. Bd. of Educ. of Lynwood Unified Sch. 

Dist., 149 F.3d 971, 979 (9th Cir. 1998) (alteration in 

original) (quoting Connick v. Myers, 461 U.S. 138, 151 

(1983)).

Consistently with these precepts, courts conducting 

Pickering balancing are to “give[] substantial weight to 

government employers’ reasonable predictions of 

disruption, even when the speech involved is on a matter of 

public concern.” Waters v. Churchill, 511 U.S. 661, 673 

(1994) (emphasis added). Waters explained this 

reasonableness standard by contrasting Connick v. Myers, 

461 U.S. 138 (1983), which held that “[t]he limited First 

Amendment interest involved here does not require that [the 

public employer] tolerate action which he reasonably

believed would disrupt the office, undermine his authority, 

and destroy close working relationships,” id. at 154 

(emphasis added), with Texas v. Johnson, 491 U.S. 397 

(1989), which held that “[n]o reasonable onlooker would 
30 MOSER V. LVMPD

have regarded [the individual’s] generalized expression of 

dissatisfaction with the policies of the Federal Government 

as a direct personal insult or an invitation to exchange 

fisticuffs,” id. at 409 (emphasis added). As these examples 

demonstrate, the pertinent consideration determining the 

strength of an employer’s interest for purposes of Pickering 

balancing is what message the government reasonably 

concluded was conveyed.

The majority holds Moser’s statement objectively 

ambiguous, but does not—and could not—declare Metro’s 

much more sensible interpretation unreasonable. Instead, the 

majority simply cites Moser’s asserted subjective 

interpretation, as to what he meant, for this conclusion. As 

the majority explains, “[t]he parties . . . do not agree on the 

objective meaning of Moser’s statement. Metro believes that 

Moser’s comment advocated unlawful use of deadly force:

Moser wished that the officers who captured the suspect 

would have shot him in retaliation for his earlier shooting of 

a police officer.” Opinion at 13–14. “Moser . . . offered a 

different take on his statement.” Opinion at 14. But Moser’s 

asserted “take” is hardly grounds for finding objective 

ambiguity in what he actually said. The majority nonetheless 

indulges Moser’s professed alternative meaning of his 

comment, explaining that Moser may have been 

“express[ing] frustration . . . at the perils of police officers 

being struck down in the line of duty;” that his comment, so 

interpreted, “touches on an important public policy issue that 

falls within his personal experience;” and that—for reasons 

that are not explained—it not only “highlights the perils 

faced by police officers,” but also highlights “the 

government’s failure to protect them.” Opinion at 14–15.

An objectively reasonable understanding of the

comments, their tone, and their context supports as more 
MOSER V. LVMPD 31

than just reasonable the police department’s and the district 

court’s interpretation of the meaning Moser’s statement 

actually conveyed, whatever he meant to say, and whether 

or not a modicum of ambiguity lurks in the statement (which 

I do not think it does). First, as the majority recognizes, 

Moser himself characterized his comments as “completely 

inappropriate;” expressing the wish that the ambushed 

officer had been able to defend himself would not be 

“completely inappropriate.” Second, Moser’s post-hoc 

explanation is entirely implausible. Moser’s comment 

concerned the arrest of the suspect—“Thanks to a Former 

Action Guy (FAG) and his team we caught that asshole. . .

It’s a shame he didn’t have any holes in him.” (Ellipsis in 

original and emphasis added.) Moser’s post-hoc 

explanation, in context, focuses on the earlier incident, in 

which the suspect shot a different officer from the one who 

captured him. Moser’s comment was most reasonably 

understood as a vivid portrayal of a desire for revenge at the 

point of capture, not as a way of saying that he wished the 

injured officer had earlier been able to pull out a gun in selfdefense. Finally, as the district court recognized, “because 

Moser posted his comment in response to a third party’s 

Facebook post—as opposed to on a personal profile with 

privacy restrictions—he spoke in a public setting,” where 

other people with Facebook accounts could view his 

comment. Thus, the majority is assuredly wrong that “the 

chance that the public would have seen the Facebook 

comment remained low,” Opinion at 21, and so wrong in 

concluding that Moser’s professed private, idiosyncratic 

meaning matters.

For each of these reasons, Moser’s manufactured factual 

dispute about the meaning of his statement should not be the 

basis for reversing the district court.
32 MOSER V. LVMPD

Second, and relatedly, the police department could 

properly consider Moser’s fitness for his job based on its 

reasonable interpretation of his statement, whether or not the 

statement would generate disruption in the workplace.

For the bulk of its opinion, the majority treats plausible 

workplace disruption, in the sense of inter-employee 

disruption or dysfunction, as the only employer interest 

relevant in the Pickering balance, and maintains that the 

summary judgment record is insufficient to support a 

prediction of disruption in that sense. But that disruption 

focus is entirely too narrow.

Pickering itself, the seminal case protecting government 

employees from discipline for their speech in some 

circumstances, made clear other management interests than 

workplace disruption implicated by the objectively 

reasonable meaning of an employee’s communication are 

pertinent. In Pickering, one reason that the teacher’s 

dismissal was improper was because his statements were 

“neither shown nor . . . presumed to have in any way . . .

impeded the . . . proper performance of his daily duties in

the classroom.” Pickering v. Bd. of Ed. of Twp. High Sch. 

Dist. 205, Will Cty., Illinois, 391 U.S. 563, 572–73 (1968) 

(emphasis added). Similarly, Rankin v. McPherson, 483 U.S. 

378 (1987), explained that in Pickering cases courts should 

look at, among other things, “whether the statement . . .

impedes the performance of the speaker’s duties.” Id. at 388 

(emphasis added). This court, drawing on Pickering and its 

progeny, has specifically recognized that it is “relevant to the

Pickering determination that an employee’s speech 

interferes with the fulfillment of his own office duties.” 

Brewster, 149 F.3d at 981 (citing Rankin, 483 U.S. at 388)).

Here, Metro had a valid interest in continually evaluating 

Moser’s qualifications as a sniper. Those qualifications 
MOSER V. LVMPD 33

assuredly include good judgment as to when to use force and 

also good judgment as to both public perception and 

perception by fellow officers concerning one’s calibration of 

when the use of force is justified. Viewing Moser’s 

statement as reasonably understood to sanction the use of 

unnecessary force, Metro had good reason to conclude that 

harboring and communicating that view was a serious 

impediment to performance of the duties of a SWAT officer.

The majority resists this evaluation of Metro’s interests 

as Moser’s employer, insisting that “Moser’s Facebook 

comment is like that of [Ardith McPherson,] the plaintiff in 

Rankin,” Opinion at 21, and so may not give rise to employer 

interests beyond those held inadequate in Rankin. But to the 

degree the statements triggering the employees’ discharge or 

transfer in the two cases are similar, the relevant employer 

concerns are to a much greater degree distinct. Moser’s 

SWAT force position is not at all like the clerical job held by 

the plaintiff in Rankin, and his statement directly concerned 

the type of activity he carried out as a SWAT officer.

In Rankin, Ardith McPherson worked for the constable 

in a “purely clerical” position. 483 U.S. at 392. She was not 

a commissioned peace officer, and she served “no 

confidential, policymaking, or public contact role.” Id. at 

391–92. Nor was McPherson’s discharge “based on any 

assessment . . . that her remark demonstrated a character trait 

that made respondent unfit to perform her work.” Id. at 389.

Rankin repeatedly emphasized this point, instructing that in 

the Pickering balance “[t]he burden of caution employees 

bear with respect to the words they speak will vary with the 

extent of authority and public accountability the employee’s 

role entails,” id. at 390, and concluding that “[g]iven the 

function of the agency, McPherson’s position in the office, 

and the nature of her statement, we are not persuaded that 
34 MOSER V. LVMPD

Rankin’s interest in discharging her outweighed her rights 

under the First Amendment,” id. at 392.

In this case, the district court on summary judgment 

noted as an undisputed fact that “Moser’s comment led his 

superiors to question his judgment and therefore fitness to 

serve as a SWAT sniper,” citing the Department’s Labor 

Board decision and the deposition of the Director of Labor 

Relations. Sabatini, 369 F. Supp. at 1093. When conveying 

the meaning of Moser’s Facebook comment, the district 

court allowed that “[e]ven if Moser wasn’t sincere, this 

cavalier and callous comment conveyed a lack of awareness 

for the degree of trust placed in SWAT officers,” citing the 

same evidence. Id. at 1092–93. The Labor Board decision 

found that Moser’s comment demonstrated a “serious lack 

of judgment” and that “they expect more of the critical 

positions in the Department, such as SWAT.” And the 

deposition of the Director of Labor Relations discussed the 

Adjudication of Complaint, which similarly stated that 

Moser’s comment “would . . . tend to negatively impact the 

department’s ability to serve the public, would impede the 

performance of [his] studies in SWAT, and thus, ha[d] made 

[him] ineffective in [his] current assignment.” When asked 

the basis for the Adjudication of Complaint, the Director of 

Labor Relations explained that “it appears from this 

comment that he’s become a little callus [sic] to killing 

someone. And someone who’s in SWAT who particularly 

has to shoot a lot, we want them taking that position very 

seriously . . . . And writing a comment like this shows that 

you might not take this as seriously anymore.”

All of these evaluations concern Moser’s qualifications 

for his particular position in light of a reasonable 

understanding of the comments that led to his removal as a 

SWAT officer.
MOSER V. LVMPD 35

III

In sum, although the majority holds that the district court 

erred in granting summary judgment for Metro because of 

factual disputes related to the meaning of Moser’s Facebook 

statement, Moser professed before the district court, 

correctly, that any such dispute was not relevant to the First 

Amendment issues in this case. As Moser waived that 

asserted dispute, he cannot rely on it on appeal. Further, 

Metro’s interpretation of Moser’s statement is not only 

reasonable, but considerably more so than what Moser says 

he meant. Metro could properly consider whether Moser 

was fit for his job duties as a sniper in light of its reasonable 

interpretation.

Stepping back, what the majority holds is that a police 

department may have to retain on its SWAT squad an officer 

who appears to support the unnecessary use of force in the 

capture of a suspect in a police shooting. I do not for a minute 

doubt that protecting the First Amendment right of public 

employees to contribute to the public dialogue on issues of 

public importance is of critical importance to our ongoing 

experiment in self-government. But we are living in a time 

when, driven by public concern, police departments 

nationwide are engaged in self-examination concerning how 

best to curb the use of excessive force by police officers as 

they carry out law enforcement’s critical role. Tying the 

hands of those departments in making personnel decisions 

based on reasonable evaluations of those officers’ ability to 

make measured judgments about the use of force—

especially where, as here, the decision concerns an elite 

officer entrusted with high-caliber weapons and particularly 

dangerous assignments—can only stand in the way of these 

efforts.
36 MOSER V. LVMPD

I would therefore affirm the district court’s grant of 

summary judgment, and so dissent.