Kentucky Supreme Court heard argument concerning the scope and applicability of Kentucky’s
Police Officer Bill of Rights, KRS 15.520, and held KRS 15.520 applicable to all police officer discipline, including minor infractions such as late/failure to report to work. See footnote 6.
We are, of course, familiar with the policy-based argument posed in the amicus brief filed by the Kentucky League of Cities predicting the parade of horrors that would follow from the application of KRS 15.520 to routine disciplinary matters, citing for example, the inability of a police chief to ask a police officer about the reasons for tardiness.
Concerns of that nature are grossly overstated. See KRS 15.520(1)(c). Seemingly, such inquiries would naturally be made before a formal accusation of misconduct since a justifiable cause for being late would negate the apparent violation of policy.
56 Page Opinion, Why? 4-3 Decision. Justices Venters, Noble and Scott with Keller (concurring by separate opinion. Minton, Abramson and Cunningham dissent by separate joint opinion.
Note: Justice Schroeder (deceased) drafted opinion in accord with Beavers v. Berea (below) and
Justice Scott is now retired, 3-3 status of the law? But see House Bill 333 (below).
Effectively overruled and did remand Beavers v City of Berea, 2010-CA-001522-MR , which involved a report of on-duty misconduct of a police officer by another law enforcement agency for which KRS 15.520 was not applicable because there was no “citizen complaint” akin to
Marco v. University of Kentucky, 2005-CA-001755-MR.
Hill Majority Opinion:
KRS 15.520 Makes No Distinction Between Administrative Disciplinary Actions for Police Officers Based Upon the Source of the Initiating Complaint or the
Status of the Complaint.
2

Yes, for matters pending post Hill and pre-House Bill 333 (Approved April 3, 2015,
Effective 6-23-15). ASIDE: CHECK EFFECTIVE DATES FOR STATUTORY
AMENDMENTS, ESPECIALLY THOSE “HIDDEN” IN BUDGETARY
“ENACTMENTS.”
Does Hill still have meaning in light of House Bill 333?
Yes, Police Chief’s terminable at-will reaffirmed, KRS 83A.080(2), BUT . . .
Our Holding is Consistent with City of Munfordville v. Sheldon. The dissent also relies extensively upon the case City of Munfordville v. Sheldon, 977 S.W.2d 497
(Ky.1998) in support of its conclusion that KRS 15.520 applies only to externallyoriginated civilian complaints and not to intradepartmental complaints. In
Sheldon, the newly-elected mayor fired the police chief (Sheldon) as the result of a civilian complaint about Sheldon's investigation of a robbery. Because Sheldon involved a complaint that happened to originate from an individual citizen outside the police department, we specifically noted that “our opinion merely forbids a mayor or other local executive authority from receiving a citizen's complaint against a police officer, then firing the officer based on that complaint, without ever affording the officer a right to publicly defend against the complaint as required by KRS 15.520.” Id. at 499.
And per our crystal clear language, that is all we held. We indicated that
“[n]othing in our holding prohibits a mayor from discharging an officer at his or her discretion [pursuant to KRS 83A.080(2) ]” and we qualified that by noting that discretion was proper only so long as “the reason behind the discharge does not trigger the hearing requirement of KRS 15.520 [.]” Sheldon simply did not address the question we now address. The holding of Sheldon would have been no different if the process invoked against Sheldon had been triggered by a complaint from within the police department. There is no indication in Sheldon that this
Court gave any consideration at all to the weighty issue we address here.
3

III.
(PreHill: “ The precedent surrounding KRS § 15.520 and the facts of this matter indicate the following: although Perry's complaint may contain a sufficient basis for relief under the statute and the Fourteenth Amendment, any failure to show the presence of a civilian complaint is fatal to his claim.”). PostHill and Pre-HB 333 an issue still exists, i.e. re-instatement with lost pay/benefits ( see Sheldon v.
Munfordville, supra.) –or- remand for hearing before the appointing authority. See
Sheldon v. Munfordville, supra.
4

 Unexcused absences from the workplace. HB 333’s “general employment policies.” But, be mindful of FMLA (50 + employees) and Americans With
Disabilities Act under new/expanded ADAA.

Ineffective Management, law enforcement procedure? But remember, KRS
95.450.
(1) The provisions of this section shall only apply to members of police and fire departments in urban-county governments and those cities that are included in the
Department for Local Government registry created pursuant to subsection (9) of this section
(2) Except as provided in subsection (6) of this section no member of the police or fire department in cities listed on the registry pursuant to subsection (9) of this section or an urban-county government shall be reprimanded, dismissed, suspended or reduced in grade or pay for any reason except inefficiency , misconduct, insubordination or violation of law or of the rules adopted by the legislative body, and only after charges are preferred and a hearing conducted as provided in this section.
(Note: hearing before City Council in Mayor-Council form of government, unless civil service).

Incompatible management style. Reeves v. City of Georgetown, 523 Fed. Appx.
662 (6 th
Cir. 2013) (Background: Former police chief filed § 1983 action in state court alleging that his removal from office violated due process and breached his contract. After removal, the United States District Court for the Eastern District of
Kentucky, 2012 WL 3962334, dismissed complaint, and chief appealed. Holding:
The Court of Appeals, Damon J. Keith, Circuit Judge, held that mayor had authority under Kentucky Home Rule Statute to terminate chief).
5

Pearce v. City of Harrodsburg , 440 S.W.3d 392 (Ky.App. 392) Plaintiff Police
Officer alleged violations of his Police Officer Bill of Rights and also constructive discharge. (Background: Former city police officer, who had resigned his employment as a police officer after being suspended with pay, brought action against police chief, individually, and in his official capacity, and against other public officials, alleging violation of statutory due process rights and various tort claims.
The Mercer Circuit Court, Darren W. Peckler, J., dismissed complaint. Officer appealed. Holdings: The Court of Appeals, VanMeter, J., held that: all of officer's claims, except claim for invasion of privacy, were precluded by his failure to exhaust his administrative remedies, and officer had lost his expectation of privacy and thus his right to privacy was not violated). Note: 2-1 decision.
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3. If a complaint is required to be obtained and the individual, upon request, refuses to make allegations under oath in the form of an affidavit, signed and sworn to, the department may investigate the allegations, but shall bring charges against the police officer only if the department can independently substantiate the allegations absent the sworn statement of the complainant .
KRS 15.520(1)(a)3 (current version).
(c)3. If a complaint is required to be obtained and the citizenindividual, upon request, refuses to make allegations under oath in the form of an affidavit, signed and sworn to, the employing agencydepartment may investigate the allegations, but shall bring charges under subsection (6) of this section against the police officer only if the employing agencydepartment can independently substantiate the allegations absent the sworn statement of the citizencomplainant;
KRS 15.520(2)(c) (new, 6-23-15 version).
ISSUE REMAINS under old and new version of KRS 15.520, that being,
Citizen Complainant will not participate in pursuing his/her complaint, but complaint has merit and i.e. cannot verify complaint’s merit other than written statement or recorded/other interview of the complaint. Note: video or eyewitnesses would meet standard of “independently substantiate” under the appropriate circumstances.
POTENTIAL SOLUTION/SAVING GRACE, PostHill : William Giberson v.
City of Ludlow, 2012-CA-002191-MR, 2015 WL 1880755.
With the directive of our Supreme Court [Hill v. City of Mt. Washington] entrenched that KRS 15.520 is applicable to disciplinary actions against police officers originating from intra-department complaints, our decision is dependent upon whether those statutory mandates were satisfied and whether, under the appropriate standard of review, the decision [of the City to terminate the Officer’s employment] must be affirmed.
We begin with the standard of review applicable to both inquiries.
Whether the City complied with the statutory [KRS 15.520] mandates is considered de novo . As stated in Liquor Outlet, LLC v. Alcoholic Beverage
Control Bd., 141 S.W.3d 378, 381 (Ky.App.2004), . . .
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***
[SIMILAR STORY, i.e. I received basic due process, but I was entitled to more]
Giberson's initial contentions focus on the City's compliance with KRS
15.520. Among its specific requirements, the statute provides for notice and a hearing and the opportunity to be represented by counsel and to present evidence . Giberson does not dispute these basic rudiments of due process were provided but claims the specific language of the statute demands much more. . .
***
In Pearce [aka Hill v. City of Mt. Washington], no hearing was provided and, therefore, the Court did not delve into the nuances of the statute's application.
Here, anticipating that time might prove prior panels of this
Court wrong, the City attempted to comply with the statutory mandates; the question is whether it did so. Admittedly, we write with no published precedent in an attempt to reach a decision consistent with the statutory language and its legislative intent.
***
The next in the series of Giberson's arguments is that the City did not comply with KRS 15.520(1)(h)(3) by producing the complaining witness at the hearing. He contends that paragraph 1 of the charging document refers to information received from Officer Thomas Hawks who informed Chief
Turner that Giberson was rude. He also points to charge 2 which references
Sergeant Beck who did not testify and charge 9 which arises from various sources.
In Pearce, the Court held that individuals making an intra-department complaint are not excluded from the notice and appearance requirements of
KRS 15.520(1)(h)(3). Pearce, 448 S.W.3d at 755. In this case, the hearing was based on the complaint signed by Chief Turner. While the other officers were possible witnesses, they were not the complaining individuals required to be notified of, and produced, at the hearing. Although Giberson could have subpoenaed their attendance , the City was not required to produce officers other than Chief Turner.
While not presented as a separate argument, Giberson alludes to the admission of hearsay evidence through Chief Turner.
Hearsay evidence is admissible in
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an administrative hearing “if it is the type of evidence that reasonable and prudent persons would rely on in their daily affairs[.]” KRS
13B.090(1). “This is true even though the hearsay evidence alone is not sufficient in itself to support an agency's findings of fact unless it would be admissible over objections in civil actions.” Mollette v. Kentucky
Personnel Bd., 997 S.W.2d 492, 495 (Ky.App.1999). The written reports documenting Giberson's misconduct and infractions of the department's rules and regulations are evidence that a reasonable and prudent police chief would rely upon when assessing an officer's job performance. We conclude any hearsay objection to Chief Turner's testimony regarding such reports was properly rejected.
9

Williams v. Jared Boggs (Kentucky State Police Trooper), U.S. District Court,
E.D. Ky, Southern Division at London, 6:13-65-DCR, 2014 WL 585373. (This case presents the issue of whether an individual confronted by law enforcement has a clearly-established First Amendment right to record the confrontation using a video camera or other recording device. Because the Court concludes that the alleged right is not clearly established, the plaintiff's claim asserted under 42
U.S.C. § 1983 will be dismissed).
FACTS. Defendant Jared Boggs is a Kentucky State Police Trooper assigned to the Harlan, Kentucky post. This action arises from a traffic stop made by Trooper
Boggs on January 7, 2013, on Kentucky Highway 3451 in Harlan County,
Kentucky. At the time of the incident, Plaintiff Lawrence Williams, then a minor, was riding a Kawasaki off-road motorcycle, performing “wheelies” in a residential area marked by “Slow, Children at Play” signs. Boggs claims that, before the incident, he had warned Williams about similar conduct. On the date of the incident, Boggs did not issue a warning. Instead, the trooper stopped Williams and cited him for operating an ATV on the roadway, careless driving, no/expired registration plates, no/expired Kentucky registration receipt, and failure to maintain required insured/security. Williams subsequently pleaded guilty to all of the charges.
Williams was video-recording his activities on January 7th using a camera mounted on his helmet. During the traffic stop, Boggs attempted to remove the camera from Williams' helmet and allegedly retain it as evidence of the plaintiff's illegal activities. Williams objected to and resisted Boggs' efforts.
***
Williams argues that his constitutional right was well established at the time of
Boggs' conduct (January 7, 2013). [Record No. 31–1, p. 10] He asserts that because the First, Seventh, and Eleventh Circuits have all found a constitutional right to film a police officer, a reasonable officer would be aware that his actions would have violated that right. [Id. (citing Smith v. City of Cumming, 212 F.3d
1332,1333 (11th Cir.2000); Glik v. Cunnife, 655 F.3d 78, 85 (1st Cir.2011);
American Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583 (7th
Cir.2012)).]
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In Alvarez, the Seventh Circuit found that Illinois' wiretapping statute criminalizing the audio and video recording of police officers violated the clearly established constitutional right to record a police officer. 679 F.3d at 595–96.
Next, in Smith, the Eleventh Circuit held that—subject to reasonable time, place, and manner restrictions—the First Amendment provides a right to record police officers. 212 F.3d at 1333. And in Glik, the First Circuit found that police officers violated a party's clearly established constitutional right to film police officers when he was arrested for videotaping them while they were arresting a man in a public park. 655 F.3d at 85. It is noteworthy that the First Circuit concluded that, while there was precedent from the Third Circuit stating that such a right was not clearly established concerning recording an officer during a traffic stop, “a traffic stop is worlds apart from an arrest [in a public park.]” Id. (citing Kelly v. Borough of Carlisle, 622 F.3d 248, 262 (3d Cir.2010)).
Williams contends that the holdings in these cases demonstrate that the right to film a police officer was clearly established on January 7, 2013, such that a reasonable officer would have known that the actions taken by Boggs were in violation of that right. He also claims that the holding in King v. City of
Indianapolis demonstrates that such a right is clearly established. No. 11–CV–
01727–TWP, 2013 WL 4602202, at *5 (S.D.Ind. Aug.29, 2013). In King, the
District Court found that the right to film a police officer during a traffic stop was not clearly established. Id. at *5. Williams argues that the district court would have held differently had the court considered the holding in Alvarez. However, that is mere speculation.
While there is some precedent from other jurisdictions indicating a right exists under the First Amendment to video-tape police in certain contexts, it is not uniform and not clearly-established, especially in the context of traffic stops.
In Kelly, the Third Circuit found that “there is insufficient case law establishing a right to videotape police officers during a traffic stop to put a reasonably competent officer on ‘fair notice’ that seizing a camera or arresting an individual for videotaping police during the stop would violate the First
Amendment.” 622 F.3d at 262 (emphasis added). Additionally, the Fourth Circuit has held that the right to record police activities on public property was not clearly established. Szymecki v. Houck, 353 Fed. App'x. 852, 853 (4th Cir.2009)
(unpublished). There, the court stated that “if the right is recognized in another circuit and not in this circuit, the official will ordinarily retain the immunity defense.” Id.
In short, the right to film a police officer during a traffic stop is not so clearly established that a reasonable officer would have fair notice that Boggs' actions violated that alleged right when the traffic stop occurred. Importantly, there is no
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authority from the Sixth Circuit clearly establishing any right to film a police officer, during a traffic stop or otherwise. See Eugene D. By & Through Olivia D. v. Karman, 889 F.2d 701, 706 (6th Cir.1989) (“[W]e examine initially, and most importantly, the decisions of the Supreme Court and the courts of this circuit.”).
As discussed above, while three circuits have held that a right to film police officers in some circumstances is clearly established, two others have held that it is not. And as the Sixth Circuit has held, “a disagreement among the circuit courts is evidence that a certain matter of federal law is not clearly established.” Miller v. Colson, 694 F.3d 691, 698 (6th Cir.2012) (citing Baranksi v. Fifteen Unknown
Agents of Bureau ofATF, 452 F.3d 433, 449 (6th Cir.2006) ( “[T]his disagreement among the circuits ... shows that the [government] did not violate clearly established law
.”)). [BUT HOLDING IS LIMITED] With no controlling authority and competing holdings from other circuits, it is not reasonable to say that an officer would have fair notice that preventing the recording of a traffic stop would violate the First Amendment right to film police.
DISCUSSION: Right of Citizen/Third Party to film Police?
Clearly established, except for narrow circumstances. Right of a passenger in a traffic stop to film?
Same. Note: could be constitutional time, place and manner restrictions in the appropriate circumstances.
12

Facts Alleged. Hands On Originals, Inc. refused to print official t-shirts for the 2012
Pride Festival.
Law Alleged. Organizer alleged denial of full and equal enjoyment of a service in violation of the LFUCG “Fairness Ordinance.”
Holding: The Order from the FFUCG Human Rights Commission violates the recognized constitutional rights of Hands On Originals, Inc. and Its Owners to be free from Compelled Expression.
For Discussion: (1) Will the Opinion And Order be affirmed and/or subject to further review; (2) Unique fact pattern involving speech and Hands On Originals, Inc. had declined to print at least thirteen orders for message based reasons, e.g. strip, club, pens promoting a sexually explicit video, and shirts containing a violence related message; and (3) what about non-speech issues involving “fairness”?
00578935.DOCX
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