Employment Law | Expert Legal Commentary

May 4, 2010

The Supreme Court Appears Poised to Reverse the 9th Cir. in Quon v. City of Ontario

Quon v. City of Ontario

By Jeremy Gray of Zuber Lawler & Del Duca

The Supreme Court Appears Poised to Reverse the 9th Cir. in Quon v. City of Ontario

As discussed here on LawUpdates.com last year, in Quon v. City of Ontario , the 9th Circuit Court of Appeals held that a City of Ontario SWAT officer named Jeff Quon possessed a privacy right in the personal text messages he sent and received from his city issued communication device. Some of these personal messages were lurid and led to an internal affairs investigation of Quon. (For the details of the case please follow the link back to our prior discussion). Because the case involved a City (a state actor), the case arose under the Fourth Amendment to the US Constitution. The court was required to consider (1) whether the SWAT officer possessed a reasonable expectation of privacy in the text messages, and, (2) even if he had such a rieasonable expectation had the City's search nonetheless been reasonable. The 9th Circuit found in favor of Quon, and held both that the personal messages were private, and, that the City's search had been unreasonable insofar as the city's search methodology had not been by the least intrusive method.

Oral argument before the US Supreme Court took place on April 19, 2010.  Conventional wisdom would hold that the more liberal members of the Supreme Court would side with the employee/SWAT officer, especially insofar as the case involved a “search”.  However, the lawyer for the SWAT team member encountered very tough and skeptical questioning from Justices Ruth B. Ginsburg, Stephen G. Breyer, Sonia M. Sotomayor, and John P. Stevens.  And the Justice who appeared most sympathetic to the employee?  Chief Justice Roberts. 

The key issues for the Court appear to be the following:

1.  Written Policy vs. Oral Change To The Policy.  The City of Ontario had a written policy that explicitly stated that “email” communications were the property of the City, and were subject to review by the City at any time.  During a meeting the Lieutenant in charge of the SWAT officers advised the officers that this policy also applied to messages sent and received from communication devices that the City had issued them.  However, the Lieutenant also said that if the SWAT officers paid the overage charges for any excess personal use of the device he would not review the messages to determine which were personal and which were business.  It was this oral statement by the Lieutenant that persuaded the 9th Circuit that the SWAT officers had a reasonable expectation of privacy in the text messages.  However, several Justices appeared dubious about this conclusion.  Their questioning indicated a preference for upholding the written policy and expressed doubts as to whether the Lieutenant had explicitly told the SWAT officer that his messages were “private” such that the officers could reasonably have an expectation of privacy.

2.  Alternative Avenues To The Obtaining Text Messages Diminished The Expectation Of Privacy.  The 9th Circuit considered, and rejected, the City’s argument that Quon lacked any reasonable expectation of privacy in the messages because as the messages could be obtained by third parties through other means. The city argued that the SWAT officer should know that his messages could be made public under the equivalent of the Freedom of Information Act, and, that a SWAT officer should also know that all of his communications were potentially “discoverable” in a criminal proceeding where he was involved as an officer.  The 9th Circuit was not persuaded that the availability of the text messages were potentially available by these other means diminished the SWAT officer’s expectation of privacy such that he did not have a viable privacy interest.  However, the Justices’ questions revealed a different view, and demonstrated that the Supreme Court may find that the SWAT officer could not have a reasonable expectation that the messages he sent from his City-issued device would remain private because they could easily be made available to third parties even without the search.

3.  The City’s Search May Have Been Reasonable.  When the Lieutenant tired of chasing down the SWAT officers to collect the money to pay for the overages, he assigned a deputy to review the messages to determine if the City’s “text plan” was sufficient to cover the business use of the devices.  It was during this review that the lurid messages between Quon and his wife and colleagues were found.  The 9th Circuit indicated that the City could have employed any one of several less intrusive means (including having the officers review the messages themselves and provide the City with a count as to what percentage of the messages were business versus private).  At least two Justices were dubious about the 9th Circuit’s reasoning.  Justice Breyer, in particular, made it clear in his questioning that even if the alternatives posed by the 9th Circuit were reasonable, it did not mean that the approach selected by the Lieutenant was unreasonable.

Given the posture of this case, the SWAT officer can lose either if the Supreme Court finds that he did not have a reasonable expectation of privacy in the text messages, or, if the Court finds that the City’s search was reasonable.  It is always dicey to predict the outcome of a case based on the Court’s questioning.  However, in this instance, the questioning was very specific, and expressed strong views in favor of the City on both of these issues.  Accordingly, we believe it is more likely than not that the Supreme Court will reverse the 9th Circuit’s decision in Quon v. City of Ontario.

About the Author

Jeremy Gray is a Partner of Zuber Lawler & Del Duca, focusing on employment law.

Image Credit: ©iStockphoto.com/HelleM

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Jeremy Gray

Companies Mentioned

Arch Wireless Operating Company, Inc.

City of Ontario

Ontario Police Department

Also See:

Sutherland v. Ernst & Young LLP: Second Circuit Denies Class Arbitration for Low-Value Employment Claims

Sun Capital Partners III, LP v. New England Teamsters: First Circuit Targets Private Equity Funds for Pension Withdrawal Liability

Univ. of Tex. Southwestern Med. Ctr. v. Nassar: Supreme Court Mandates Strict Burden for Title VII Retaliation Plaintiffs

Vance v. Ball State University: Supreme Court Limits Employer Exposure to Strict Liability Under Title VII

Parisi v. Goldman Sachs & Co.: Second Circuit Upholds Arbitration Clause Barring Title VII ‘Pattern-or-Practice’

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Companies Mentioned

Employment Law

The following companies are mentioned in Employment Law Updates:

Equal Employment Opportunity Commission

Ontario Police Department

City of Ontario

Arch Wireless Operating Company, Inc.

Hosanna-Tabor Evangelical Lutheran Church and School

B & D Contracting

Metropolitan Government of Nashville and Davidson County, Tennessee

Watkins Motor Lines, Inc.

Agere Systems, Inc. f.k.a. Lucent Technologies, Inc.

Tulsa Winch, Inc.

Ramsey Winch, Inc.


DP Manufacturing, Inc.

Auto Crane Company

Sun Capital Advisors III, LP

SBC Telecom, Inc.

Sun Capital Advisors IV, LP

SBC Services, Inc.

Ernst & Young LLP

Pacific Telesis Group

Granite Rock Company

Pacific Bell Telephone Co.

International Brotherhood of Teamsters

Pacific Bell Information Services

International Brotherhood of Teamsters, Freight Construction, General Drivers, Warehousemen & Helpers, Local 287 (AFL-CIO)

Advanced Solutions, Inc.

SmithKline Beecham Corp. d.b.a. GlaxoSmithKline

State Lottery Commission of Indiana d.b.a. The Hoosier Lottery

Cardone Industries, Inc.

Kellogg Brown & Root technical Services, Inc.

Lehigh Valley Physicians Business Services, Inc.

Service Employees International, Inc.

Lehigh Valley Health Services, Inc.

Zurich American Insurance Co.

Huron Valley Ambulance, Inc.

Autozone, Inc.

Wal-Mart Stores, Inc.

American Insurance Co.

Temco Service Industries, Inc.

City of Chicago

14 Penn Plaza LLC

Reliance Standard Life Insurance Co.

City of Philadelphia

New Process Steel L.P.

Northeastern Land Services, Ltd. d.b.a. NLS Group

National Labor Relations Board

LA Weight Loss, Inc. n.k.a. Pure Weight Loss, Inc.

Rent-A-Center West, Inc.

Gold’n Plump Poultry, Inc.

EGL, Inc.

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