Reference no: EM132217828

Quetions: How could one argue that Sergeant Quon’s right to privacy was violated by the Ontario Police Department? Which of the department’s actions could be perceived as unjustified, and why? How could you argue that his right to privacy was NOT violated by the Ontario Police Department? Do you believe that the manner in which he misused the department pager (i.e., using sexually charged language) should matter in determining whether his right to privacy was violated? Why or why not?

CASE: Sergeant Jeff Quon, a police officer with the city of Ontario, California, learned that his supervisors had audited his use of a department-issued pager.90 The text messages that Quon had sent and received on this pager significantly exceeded the monthly allotment of 25,000 characters that was allowed in the department’s mobile service contract. The department did not prohibit employees from using their communication devices for personal text messaging. However, employees were told that personal use should not be excessive and that they were expected to pay for usage beyond the allowable messaging limits. The rationale for the audit was straightforward: It was part of a larger effort by the Ontario Police Department to determine the necessary level of mobile service for employees’ job-related activities. This effort was undertaken because the department chief thought that it was unnecessarily burdensome for the department to collect “overage” fees from employees who used their department-issued devices for personal use. The audit revealed that Quon had sent personal text messages while on duty and that some of these messages were of a sexually explicit nature. These personal messages had been sent to his wife, Jerilyn Quon, and also to a girlfriend, April Florio, an Ontario Police Department dispatcher with whom he was having an affair. Some personal messages were sent to another sergeant in the department, Steve Trujillo. As a result of the audit, Quon was “disciplined” in accordance with the department’s personnel policies for “pursuing personal matters while on duty.” The Ontario Police Department was able to obtain records of Quon’s text messages through the city’s contract with a local service provider, Arch Wireless, which archived the messages exchanged between Quon, Florio, and Trujillo on their employer-issued pagers. From the transcripts of Quon’s text messages provided by Arch Wireless, Ontario Police Department investigators could easily determine the recipients of the messages, the time the messages were sent, and the content of the messages. In their report of the audit, the Ontario Police Department redacted the content of all messages that Quon had sent while off duty. In 2003, Sergeant Quon, along with his wife, Jerilyn Quon, April Florio, and Steve Trujillo, filed suit in federal District Court claiming that the Ontario Police Department and the City of Ontario had violated his rights under the Fourth Amendment to the U.S. Constitution by examining his text messages. The Fourth Amendment protects the right of citizens to “be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Quon’s suit maintained that the Fourth Amendment protected public employees against unreasonable searches and seizures at work because their employer is a unit of government, subject to the limitations set forth in the Constitution. The Ontario Police Department maintained in court documents, however, that Quon had no expectation that the text messages sent on his pager would be treated as private information, subject to Fourth Amendment protection. Even though there was no explicit policy regarding mobile devices, Quon was notified in writing by the department that the City of Ontario’s “Computer Usage, Internet and Email Policy” was applicable to his department-issued pager. This policy clearly stated that use of city-owned equipment and communication through the city’s e-mail server were subject to auditing and that all employees were expected to limit their use of cityowned equipment and the e-mail system to work-related matters. Quon was also notified during an employee meeting that messages sent and received on department-issued pagers were considered e-mail messages for the purposes of the city’s electronic communications policy. The department further claimed that Quon was issued a pager specifically for use as a member of the department’s SWAT team. This highly specialized group of police officers was given pagers for use when other forms of communication were unavailable. These facts led the District Court to rule in favor of the Ontario Police Department, noting that, in the absence of an expectation of privacy, Quon’s Fourth Amendment protections were not violated. The court ruling was complicated by the fact that the supervising lieutenant told Quon, prior to the audit, that messages over the standard limit would not be reviewed if Quon paid for the overage fees. Quon subsequently claimed in Federal Appeals Court that he relied upon this informal assurance and also believed that the policy of permitting personal use of the pager conveyed an expectation of privacy. He argued, further, that accessing the content of his text messages was unnecessary if the only purpose of the audit was to determine the allotment of work-related messaging. The amount of official text messaging could have been be assessed, for example, through employees’ own record-keeping or an examination of the time and recipient of the messages, rather than from the content of the messages themselves. The Appeals Court was persuaded by this argument and overturned the District Court’s ruling, which would stand pending any review by the U.S. Supreme Court