State Supreme Court upholds Milwaukee cop’s firing over Facebook posts

The Milwaukee Police Administration Building downtown. (Isiah Holmes | Wisconsin Examiner)

The Wisconsin Supreme Court has rejected a former Milwaukee police officer’s argument that he wasn’t given enough information about why he was fired after making controversial posts on Facebook six years ago.

Milwaukee’s police chief at the time fired the officer, Erik Andrade, after talking to a prosecutor who said that because of Andrade’s Facebook posts, he would be put on a list of officers who would never be called to testify in court cases.

In appealing the firing — which was upheld by the Milwaukee Fire and Police Commission as well as by lower courts — lawyers for Andrade argued that he was never told about that specific reason until after the Fire and Police Commission’s hearing that affirmed his termination. For that reason, Andrade’s attorneys said, he was denied due process in his firing. 

In a 5-2 opinion, however, the Supreme Court ruled Tuesday that Andrade was given sufficient information about the reasons for his firing and adequate opportunity to respond. Due process, wrote Justice Brian Hagedorn, “does not require a more exacting and rigid pre-termination process than what Andrade received.”

Hagedorn was joined in the opinion by Justices Ann Walsh Bradley, Rebecca Dallet, Jill Karofsky and Janet Protaseiwicz.

Andrade’s Facebook posts came to light after a high-profile incident Jan. 26, 2018, in which MIlwaukee police arrested Milwaukee Bucks player Sterling Brown, using a taser on him. Andrade transported Brown to the police station after his arrest and later put a post on his personal Facebook page, “Nice meeting Sterling Brown of the Milwaukee Bucks at work this morning! LOL#FearTheDeer.” 

In the months that followed, Andrade posted other Facebook comments that a Milwaukee alder shared with the police department, and the department opened an internal affairs investigation of Andrade. 

In June 2018 Brown sued the city along with Chief Alfonso Morales and the officers who had arrested him, including Andrade. The lawsuit “cited many of Andrade’s offensive posts as an admission that Andrade and other officers could engage in ‘unlawful attacks and arrests of African Americans without justification’ or a ‘fear of real discipline,’” the opinion states.

Andrade was charged with violating department policies on two counts: one that calls on officers to be “accountable for the quality of our performance and the standards of our conduct,” and the other demanding honesty, integrity and behavior that “shall inspire and sustain the confidence of our community” and not in ways “that discredit could be brought upon the department.”

“Both violations were a result of Andrade’s Facebook posts that contained ‘inappropriate, disrespectful and defamatory comments to various memes and videos,’” Hagedorn’s opinion states..

Morales consulted the Milwaukee County District Attorney’s office, where prosecutors told the chief that the posts “diminished his credibility so severely that the office would never call him to testify,” Hagedorn wrote — and that because of the posts’ content, “if Andrade served as a witness in a criminal proceeding, the District Attorney’s Office would be required to disclose evidence of Andrade’s bias and untrustworthiness to defense counsel as impeachment evidence.”

Morales fired Andrade, and the Fire and Police Commission upheld the firing on Andrade’s appeal. Rulings from a circuit judge and the state appeals court also upheld the firings.

Andrade argued that because he didn’t specifically know that his inability to testify lay behind his firing, he wasn’t granted appropriate due process. That wasn’t relevant, however, Hagedorn wrote in Tuesday’s opinion.

“Chief Morales did not charge Andrade for his inability to testify,” Hagedorn wrote. “As the Chief explained, his conclusions about the policy violations differed from his decision about how to discipline Andrade.”

With his opportunities to appeal all along the way, “we hold that Andrade received all the process he was due under the Fourteenth Amendment.”

In a dissent, Chief Justice Annette Ziegler, joined by Justice Rebecca Bradley, sided with Andrade. Ziegler wrote that  “the real reason for his termination” was “his perceived inability to testify, not his ‘failure to inspire and sustain the confidence of the community.’”

Had he  known about that specific reason for his firing from the start, “Andrade may have had the opportunity to present evidence in his defense to challenge his termination,” Ziegler wrote. “He could have defended himself differently, or more robustly.”

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