Ninth Circuit Reaffirms General Right of Privacy for Public Employees to Engage in Off-Duty Sexual Behavior

March 5, 2018 by Sarah Sandford-Smith

The Ninth Circuit Court of Appeals has issued a decision reaffirming a public employee’s general right of privacy and intimate association. Perez v. City of Roseville (No. 15-16430 (9th Cir. February 9, 2018)).

The case involved two Roseville police officers who began an intimate relationship while employed by the City. In response to a citizen complaint alleging the two officers were having an affair, and were engaged in sexual conduct on-duty, the City conducted an Internal Affairs investigation. The officer in charge of the investigation found no evidence of on-duty sexual contact between the two officers, but noted that they did make calls and texts to each other when one or both of them was on duty, which “potentially” violated Departmental policy. One of the two officers, Perez, was thereafter terminated.

Perez filed a lawsuit alleging that her Constitutional rights to privacy, freedom of association and due process were violated when she was terminated based, in part, on her private, off-duty affair with the other officer. The district court granted summary judgment to each defendant.

The Ninth Circuit reversed the district court’s summary judgment. In doing so, the court reaffirmed that the Ninth Circuit has “long recognized that officers and employees of a police department enjoy a ‘right of privacy in ‘private, off-duty’ sexual behavior’.” The court went on to explain that the Constitutional rights to privacy and intimate association are violated when a public employee’s termination is based, at least in part, on his or her private, off-duty sexual activity. The only exceptions are where the conduct negatively affects on-the-job performance or violates a constitutionally permissible, narrowly tailored regulation. In this case, the evidence demonstrated that Perez’s performance was average to above-average, and there was no claim that her conduct violated a narrowly-drawn, constitutionally permissible regulation.

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