By Eric Heisig
The Plain Dealer, Cleveland
CLEVELAND — A federal judge on Friday ruled that a former Cleveland EMS captain fired over offensive Facebook posts about Tamir Rice should not get his job back while also striking down the division’s social media policy.
U.S. District Judge Solomon Oliver Jr. blocked officials from enforcing the policy, but rejected legal arguments made by Jamie Marquardt that said the unconstitutional policy wrongly led to his termination. The fired captain has steadfastly denied posting statements in February 2016 about Tamir, a 12-year-old shot by a Cleveland police officer at Cudell Recreation Center in 2014 when he was holding a realistic-looking airsoft pellet gun.
Those posts referred to Tamir as a “felony hood rat” and said “I am glad he is dead.”
“I wish I was in the park that day as he terrorized innocent patrons by pointing a gun at them walking around acting bad,” one post said. “I am upset I did not get the chance to kill the little criminal f----r.”
Marquardt has blamed a friend named “Donnie” for posting the offensive remarks while Marquardt was away. The city later fired Marquardt.
Marquardt sued the city and EMS Commissioner Nicole Carlton, seeking to be reinstated to his job and given back pay. He said the posts, even if he’d posted them, are protected by the First Amendment.
Oliver wasn’t buying it.
While the former captain argued he was fired for speaking on a matter of public concern, which he is required to prove to show his First Amendment rights were violated, the judge wrote that he found “no socially or politically relevant message in Plaintiff’s posts.” Merely mentioning Tamir is not enough to make his statements such a matter, the judge wrote.
“It is unimaginable that Facebook posts detailing the author’s desire to kill a twelve-year-old boy and his joy that he is already dead are a matter of public concern,” Oliver continued. “His references to ‘I’ and ‘me’ in his posts show this was a personal grievance that was written to further his own private interests.”
Oliver did, however, rule that the EMS division’s social media policy is overly broad and unconstitutional. The judge wrote that its ban on posting “harmful” or “inappropriate” statements about the city and the EMS division “limits employees’ right to speak on matters of public concern.
“Defendants have not provided sufficient evidence to justify such a sweeping policy,” Oliver continued.
Nevertheless, Marquardt can’t get his job back just because of that ruling, as he was not posting about a matter of public concern, Oliver ruled.
Marquardt’s attorney Steven Shafron did not return a voicemail. The city of Cleveland did not respond to a request for comment.
The former EMS captain, who was hired in 1991, wrote in his lawsuit that Donnie showed up at his home unannounced and was agitated and suicidal. He said he stayed up all night trying to help Donnie and was able to go to sleep after 5 a.m.
Marquardt said he left his cellphone on his kitchen table and when he woke up, Donnie was gone. He later picked up his cellphone and saw a number of messages from friends related to posts on his Facebook page, according to the suit.
He claimed he was appalled and deleted the posts. He put up another post disavowing the viewpoints and said “If my good friends did not text me, I would have never known it was there,” according to the lawsuit.
An arbitrator who ruled in 2018 that Marquardt shouldn’t get his job back wrote that the captain’s testimony about Donnie was “implausible in light of the evidence and what is at stake.” Marquardt refused to provide Donnie’s last name so he could be questioned about the matter, wrote the arbitrator, Robert Stein.
Moreover, Marquardt’s Facebook page included many other disparaging posts, Stein wrote. Some of those posts were detailed in court filings for Marquardt’s lawsuit, and also included other statements about Tamir Rice.
They also included 2014 posts in which that talked about “The Al Sharpton guilty n----r fund” and another one where, in a conversation regarding corporal punishment, he wrote “f--k these little ghetto rats that kill innocent people,” according to court records.
The city agreed to a $6 million settlement with Tamir’s family.
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