WEST PALM BEACH, FL – Late last month, a three-judge panel from the 11th US Circuit Court of Appeals held that the Palm Beach, FL Sheriff’s Office (PBCSO) did not violate the constitutional rights of two deputies when it fired them for appearing in pornographic pictures and videos that were distributed online.The case, Ronald Thaeter v. Palm Beach Co. Sheriff’s Office, traces back to photographs and videos created sometime prior to the fall of 2000, when a “a private citizen made an anonymous complaint to the PBCSO and reported the participation of the police officers in sexual activity displayed on the websites,” according to the “Background” section of the 11th Circuits ruling.

After having their employment terminated by the PBCSO – despite having been cleared by an internal investigation conducted by the PBCSO – the two deputies filed suit against the PBSCO.

In the opinion, written by Judge Stanley Birch Jr., the Court finds, citing the case of City of San Diego v. Roe, that the videos and photographs in which Deputies Ronald Thaeter and Timothy Moran participated are not constitutionally protected speech, because the “paid participation of Deputies Thaeter and Moran in pornographic photographing and videotaping for Internet display for a fee ‘does not qualify as a matter of public concern under any view of the public concern test.’”

“On the facts of this case,” the Court concludes, “there is no legal basis for this case to proceed.”

The Court’s decision relies heavily on San Diego v. Roe, but Fort Lauderdale attorney Richard L. Rosenbaum noted that there significant differences between the two cases and said that he could not get the 11th Circuit panel to recognize those differences.

“The morning of the argument was the morning after the Roe v. San Diego ruling was published,” Rosenbaum says, adding that he felt he “couldn’t get the Court to hear” the differences between the circumstances in the two cases.

“This was not like Roe,” Rosenbaum says, because the deputies “were not in uniform, and they were not representing themselves as police officers.”

In Roe, police officer John Roe made videos wherein he masturbated while wearing a police uniform, and subsequently made the videos available for purchase on eBay. Roe did not identify himself as a member of the San Diego Police Department or as a representative of law enforcement, but the Court found that “Roe took deliberate steps to link his videos and other wares to his police work, all in a way injurious to his employer.”

Rosenbaum notes that Thaeter and Moran did no such thing and took measures to avoid being identified at all by requesting that their faces be obscured in the images and videos posted online. Not all of the images were obscured, however, which led to the eventual notification of the PBCSO.

The Court, however, had a different take on why Thaeter and Moran sought to conceal their identity as police officers.

Noting that the deputies failed to “comply with the rule requiring prior written approval from Sheriff Bieluch before engaging in any off-duty employment,” the Court adds that “Their knowledge of this rule is further shown by the deputies’ attempts to conceal their identities in the pornographic videos in which they participated, demonstrating their realization that this off-duty conduct was done in contravention of the rules governing their PBCSO employment.”

The deputies maintained in their lawsuit that they had not been compensated for their performances – at least not directly. As the Court notes in its ruling, “The web-sites were registered only in the names of the women. Any financial gains were, therefore, reportedly only paid to the women.”

The Court, however, found that the “acquisition of earnings from the web-sites being paid only to the women is a technicality dwelled upon by Deputies in order to create the appearance of separating themselves from the business aspects of the web-sites…. Even if the financial gains were paid only to the women, the Deputies certainly would have had an expectation of financial gain through their own participation.”

Interestingly, Thaeter and Moran were cleared by an investigation conducted by the Bureau of Internal Affairs of the PBCSO. Investigator Paula Kronsperger of Internal Affairs conducted the investigation and concluded that misconduct charges leveled against the officers were not sustained by the facts.

“After reviewing hundreds of photographs, Investigator Kronsperger located a few where the faces of Officers Thaeter, Moran and Maxwell were identifiable, but she found no association with the PBCSO discernible to anyone not personally acquainted with the officers,” according to Court records. “She further noted that all the photographic materials appeared to involve consensual sexual activity.”

The PBCSO complaint against deputies focused on a single statement within the code of ethics that all deputies of the PBCSO must swear to uphold. The ethics provision states “I will keep my private life unsullied as an example to all.”

“I’ve tried repeatedly to figure what ‘unsullied’ means,” says Rosenbaum, “and if I don’t know, I don’t know how you can expect these deputies to know what it means, or how to prevent ‘sullying’ their private lives.”

Rosenbaum isn’t alone in finding the term “unsullied” in the context of the ethics code problematic; in her internal investigation, Kronsperger found the word an impossibly imprecise term.

“As there is no place for personal opinion in a fact-finding investigation, I must therefore recommend this aspect of the Code of Ethics be viewed as a policy failure,” Kronsperger stated at the conclusion of her investigation, according to court documents. “Due to its general verbiage, this particular policy statement would inevitably entail the rendering of a subjective opinion and/or individual interpretation in order to arrive at any finding, whether sustainable or not. I would be remiss in my responsibilities as an Investigator if I did not raise this issue for consideration.”

Kronsperger’s determination that the situation was a case of policy failure, rather than violation of policy on the part of the deputies, was reversed by her superior within the Internal Affairs bureau, Administrative Manager Frank DeMarco.

“What one does in the privacy of their home is something that is sacred, should not be compromised, and is protected by the constitution,” DeMarco stated in explaining his reversal of Kronsperger’s decision. “However, I believe that once these individuals made a conscious, adult decision to involve themselves and their wives in pornography on the Net, they crossed the line and exposed themselves to both criticism and scrutiny of this agency.”

DeMarco also rejected the notion that a deputies’ conduct necessarily be illegal in order to merit sanctions or disciplinary action from the PBCSO.

“The fact that what they are doing may not be illegal does not have a bearing on whether or not the conduct is offensive or embarrassing to the Palm Beach County Sheriff’s Office,” DeMarco asserted. “It is also true that whether or not this conduct is immoral or offensive to the community should not have any impact on this agency’s ability to denounce the individuals or to punish them.”

DeMarco also found the conduct of the officers so egregious that it was appropriate to terminate the officers, even if the conduct could not be said to be a clear violation of PBCSO policy.

“I have encountered deplorable behavior on the part of Law Enforcement Officers during my tenure as a police officer, but I find what these individuals have done is unconscionable and truly an embarrassment to all members of this agency and to the Law Enforcement community in general,” DeMarco states. “In order for Law Enforcement to have the respect of the community they serve, they must hold themselves to a higher standard of behavior at all times – not just while on duty.”

For Rosenbaum, however, the PBCSO’s authority should not reach into the private lives of its officers and legal conduct engaged in during their free time, regardless of whether depictions of their conduct is distributed on the internet.

“What you do on your own time is your own business,” Rosenbaum says. “What these officers did was not obscene, not illegal, and not any of the Sheriff Office’s concern.”

Rosenbaum said that Thaeter and Moran have several options for how to proceed, but that he believes it’s unlikely that his clients will do so, largely for practical reasons.

“They can request a rehearing from the same panel, they can request a hearing from the entire 11th Circuit, or they can appeal to the Supreme Court,” Rosenbaum says, “but I’m not even sure they have the financial wherewithal to do so.”