Chicago Public Defender's Claim Over Displaying Photo with Israeli Flag and Gun Can Go Forward

From today’s decision by Judge Joan Lefkow (N.D. Ill.) in Gassman v. Cook County; as usual on a motion to dismiss, the factual recitation consists of the allegations from plaintiff’s Complaint (not any factual findings by a judge or jury):

Debra Gassman is an Assistant Public Defender for the Public Defender of Cook County, Illinois. She has been employed as a lawyer by the Public Defender since 1997 …. Gassman is Jewish and “devoted to Israel.”

In 2002, Gassman volunteered for the Israel Defense Forces (“IDF”). In December of 2002, during her volunteer stint, Gassman took a photograph of herself holding a gun in front of an Israeli flag (“the photo”). The photo was taken in Tel HaShomer, an army base near Tel Aviv. The photo is approximately 11 inches tall. It is reproduced below:

When Gassman returned from Israel in 2002, she prominently displayed the photo in her shared office at the Leighton Criminal Courthouse in Chicago. The photo reminds Gassman of her time spent defending Israel and the Jewish people. To Gassman, the photo signals that the Jewish people must “stay strong” when threatened by other nations. The photo remained there, undisturbed, until she transferred to the Public Defender’s office in Skokie, Illinois, in October 2020. In Skokie, Gassman again displayed the photo in her shared office “without incident.”

On October 7, 2023, Hamas terrorists invaded Israel and attacked civilians. Gassman was “devastated, shocked, and scared by the October 7 attacks.” She returned to work on October 10th. Upon returning, Gassman felt upset that “few seemed to care—or even were aware of”—the attack on Israel. “[T]o bring attention to the attacks that had occurred in Israel and the need to support the victims,” Gassman brought the photo out of her office and placed it on top of the employee mailboxes for her coworkers to see. Gassman positioned the photo so that it faced the back of the office toward the staff; it was not visible to the public. Public Defender employees regularly display items such as holiday decorations, photographs, art, and cards in the same area.

When executive management (Cook County Deputy Public Defender Parle Roe-Taylor and Rodney Carr) learned of the photo, they instructed the Public Defender “Chief” to remove it. Carr and Roe-Taylor told Gassman’s supervisors that the photo was “comparable to a Nazi swastika.” Gassman removed the photo and returned it to her private office, where she continued to display it. The photo was “not visible to members of the public.”

On October 20, 2023, Mitchell issued a written reprimand to Gassman. The reprimand explained that Gassman’s display of a photograph depicting a firearm “can be perceived as threatening and therefore is[] inconsistent” with the Public Defender Employee Manual (“Employee Manual”) policy regarding workplace violence. The reprimand further noted, “tragic world events likely motivated this display and may have compromised your judgment. We have considered this in our decision not to pursue any disciplinary action at this time.”

On October 30, Roe-Taylor went to the Skokie office. While Gassman worked in court, Roe-Taylor entered Gassman’s office and confiscated the photo. Roe-Taylor then requested a meeting with Gassman and “[her] Chief.” Roe-Taylor conveyed that the photo amounted to displaying a firearm in public view.

Gassman’s Chief obtained the photo and returned it to Gassman but instructed that it could not be displayed inside her office as she had done previously. Executive management further explained that the photo could not be placed where “anyone might see it from any angle of the entryway to her office.” The photo was not in public view, however, when Roe-Taylor confiscated it. Gassman’s office is in the back corner of the Skokie office and rarely visited. Gassman does not use her office to meet with clients.

The Public Defender generally permits employees to display pictures and other messages inside their offices without censorship or regulation. Public Defender employees have even been permitted to display photographs of guns that did not depict the Israeli flag. A senior supervisor, for instance, once emailed an image of a film character pointing a gun at another to approximately twenty public defenders. The email included the joking remark: “[W]e all know what can happen when there is a difference of opinion.” Additionally, Public Defender employees have placed signage in the Public Defender’s office to celebrate favorable verdicts.

Images from these congratulatory posts sometimes depict weapons, including guns. The Public Defender has also permitted employees to possess actual weapons in their offices, such as guns and swords.

To Gassman’s knowledge, no Public Defender employee has ever been restricted from displaying a photograph of a weapon. Moreover, no one ever complained that the photo was distressing or inappropriate until the events described in her Complaint. To the contrary, those who observed the photo commented favorably on it and expressed admiration for her service in the IDF.

Gassman sued, and the court allowed her First Amendment claim related to the removal of the photo to go forward:

As an initial matter, the court concludes that Gassman’s alleged displays of the photo constitute “speech” implicating the First Amendment. T.V. ex rel. B.V. v. Smith-Green Cmty. Sch. Corp. (N.D. Ind. 2011) (displaying photographs “itself expressed an intention to communicate the expression inherent in the … conduct and the images of it … [and] qualifies as ‘speech’ within the meaning of the First Amendment”).

The proper analytical framework here is found in Pickering-Connick which is specific to government employees: the test “weighs a public employee’s interest in freedom of speech against the government’s interest in the efficient provision of services.”

To determine whether a plaintiff engaged in speech protected by the First Amendment, the court first asks if the employee spoke (1) as a private citizen; and (2) on a matter of public concern. If the answer to either of these questions is “no,” then the employee has no First Amendment claim. If both initial elements are met, the court next asks whether “‘the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees’ outweighs ‘the interests of the [employee], as a citizen, in commenting upon matters of public concern.’”

Gassman alleges that she displayed the photo on the mailboxes “to bring attention to the attacks that had occurred in Israel and the need to support the victims” and to “share the atrocities taking place.” She further alleges that the photo’s “core message” is that “Israel and Jewish people have the right not to be exterminated.”

Gassman’s speech is unrelated to her employment and Defendants concede Gassman was speaking as a private citizen. The court therefore finds that Gassman spoke as a private citizen when she displayed the photo above the mailbox and in her private office.

Next, the court considers whether Gassman spoke on a matter of public concern. Speech is directed at a matter of public concern if it “relates to any matter of ‘political, social, or other concern to the community.’” … The court finds that Gassman’s speech relates to a matter of political and social concern.

The court next asks whether “‘the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees’ outweighs ‘the interests of the [employee], as a citizen, in commenting upon matters of public concern.’” Defendants argue that Gassman’s interest in the speech “is outweighed by the operational interests of the Public Defender.” Gassman refutes this and contends that engaging in the Pickering balancing test is premature.

The Pickering balancing test is a fact-intensive inquiry that “[n]ormally … will be possible only after the parties have had an opportunity to conduct some discovery.” Accordingly, “the Seventh Circuit has advised that such an issue should not be decided at the pleading stage.” The court therefore concludes that conducting the Pickering balancing test at this stage would be premature.

{Gassman alleges that the Public Defender’s removal and censorship of the photo was “pretextual and based on its content.” “Where a plaintiff claims that the stated grounds for his/her discipline were a pretext for the discipline imposed, the court does not apply the Pickering balancing test solely to the speech that defendants claim motivated the disciplinary action …. Rather, the court considers all of the speech that the plaintiff alleges is protected.” Because applying the Pickering balancing test is premature, however, the court need not reach these issues.}

The court rejected, however, Gassman’s claims that particular policies related to employee speech were unconstitutional prior restraints; these policies weren’t involved in the removal of the photo, but Gassman claimed they would affect her ability to discuss the removal of the photo.

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