LA Sheriff Watchdog: The First Amendment Shouldn't Shield Deputy Cliques, Tattoos From Scrutiny
For years, the Los Angeles County Sheriff's Department has struggled with what to do about secretive deputy cliques, some of which have turned violent against colleagues and the public. Deputies who belong to those cliques typically sport tattoos that identify them as members.
And for years, the department has done almost nothing to rein in these groups, largely because L.A. County's lawyers have argued that deputy cliques and tattoos are protected by the First Amendment.
Now a member of the Sheriff Civilian Oversight Commission is challenging that analysis, pointing to Supreme Court cases that he says allow government entities to restrict employees' speech in certain circumstances.
On Tuesday, the oversight panel unanimously voted to direct the county's Office of the Inspector General to conduct an investigation into deputy cliques, potentially setting up more disputes over Sheriff's Department employees' free speech protections.
Commissioner Sean Kennedy, a former federal public defender, wrote an April 2 memo arguing that the sheriff's department and county counsel "are significantly overstating the First Amendment and due process protections for tattooed deputies."
The First Amendment clearly prohibits the government from restricting a private citizen's speech, Kennedy wrote in the memo to the commission's ad hoc Committee on Deputy Cliques/Secret Societies. But he pointed to several U.S. Supreme Court decisions that opened the door for the government to impose certain limitations on the people it employs.
One of those decisions is the 1968 Pickering v. Board of Education case, in which the Supreme Court ruled "that a government employer may restrict an employee's speech if that speech is likely to negatively impact the efficiency of providing its services or otherwise undermine its mission," wrote Kennedy, who is also a professor at Loyola Law School.
"The longstanding, widespread problems caused by internal cliques demonstrate a substantial need to regulate clique tattoos in order to effectuate [the sheriff's department's] public safety mission," he wrote.
Deputies' participation in cliques — some of which have engaged in violent behavior — "has generated fifty years' worth of bad press," and at least three independent oversight bodies "have voiced serious concerns about cliques and management's failure to address them," Kennedy wrote.
He noted that there have also been a number of lawsuits and settlements "regarding violence committed by alleged or admitted clique members."
Kennedy said subsequent federal cases "have interpreted Pickering as authorizing a government agency to regulate without restriction employees' non-political speech."
Tuesday's vote directs the Inspector General to find out "why, how, and to what end personnel join these groups," and "to determine whether members of these groups engage in conduct that violates Department policy or law," according to an Oversight Commission statement.
The panel called on the Inspector General to report back within 90 days.
Kennedy and Commissioner Lael Rubin, two of the three members of the ad hoc committee on cliques, said the probe will help the commission come up with recommendations to address the issue.
"IT'S GOING TO BE HARD ... TO OVERCOME THE RIGHT TO PRIVACY"
While acknowledging that the courts have given government agencies the right to restrict certain employee speech, UCLA Law Professor Eugene Volokh said the issue in the case of deputies' tattoos and cliques is not so clear.
"It's going to be hard for the government to overcome the right to privacy," he told LAist. "It's going to have to say that somehow banning the tattoos is going to do a lot to stop any misconduct."
Tattoos are merely symptoms of problems and banning them will do more harm than good, Volokh said. He suggested banning tattoos would "do a lot to interfere with people's right to autonomy over their own bodies."
Peter Eliasberg, legal director for the ACLU of Southern California, said there's no question that the sheriff's department has a right to investigate whether its employees have tattoos or belong to cliques, and what the nature of those cliques is.
"I do believe that the government has an interest here that may very well outweigh the First Amendment interests that these employees have a tattoo, a tattoo that associates them with [for example] the Banditos [clique]," he said. It's "not a tattoo that associates itself with Christianity or Judaism or Islam."
A LONG HISTORY OF BAD BEHAVIOR
Disturbing or violent behavior by cliques has surfaced periodically within the sheriff's department for decades, dating back to at least 1991.
County counsel has always said that the department cannot ban tattoos or cliques; it can only take action against individuals who violate policy or the law.
Deputy County Counsel Elizabeth Miller reiterated this position at the March 26 Civilian Oversight Commission meeting.
In addressing the challenges of investigating cliques, Miller said, "You're talking about sworn peace officers who have not just protections of the Peace Officers Bill of Rights but also protections all of us have under the First Amendment."
Sheriffs have followed that opinion over the years.
When asked at the March 26 commission meeting if he has quizzed his own top managers about whether they have tattoos, Villanueva said he had not.
"That would be inappropriate," he said. "It's very difficult to pin down a policy that survives constitutional muster when you're dealing with something [like] joining a group or wearing a tattoo or not wearing a tattoo, because there's a very strong First Amendment protection."
The department is nonetheless trying to discourage deputies from getting tattoos, Undersheriff Tim Murakami told the commission.
"Even though right now we can't prohibit" employees from getting tattoos, "we can let them know about the negative connotations of obtaining one," he told the commission.
THE BANDITOS, THE VIKINGS AND THE 2000 BOYS
Last September, members of the Banditos deputy clique at the East L.A. Station allegedly beat up a group of younger deputies, sending two to the hospital, according to legal claims filed by seven deputies. The legal claims — typically a precursor to a lawsuit — argue the department has failed to curb the Banditos and the undue power they hold over station operations.
The sheriff transferred the station's captain and other supervisors after the fight, and he said he has launched criminal and administrative investigations.
Another problematic clique was the Vikings, which operated out of the Lynwood Station in the early 1990's. Members of the group saw the use of excessive force against some suspects as acceptable, and rewarded members who got into shootings.
A gang in the L.A. County jails called the 2000 Boys regularly roughed up some of the toughest inmates, according to investigators. In all, the department has had at least a dozen active cliques with names like the Grim Reapers, The Regulators and the Jump Out Boys, according to a 2018 study by Sean Kennedy's students at Loyola Law School.
Caren Carl Mandoyan, the deputy Villanueva rehired after McDonnell fired him over allegations of domestic abuse and lying, told an investigator that he has a Grim Reapers tattoo on his ankle, according to documents released by the County Civil Service Commission.
Deputy cliques have been addressed in various reports over the years. The seminal 1992 Kolts Commission Report was the first official confirmation of the existence of violent cliques.
In 2005, then-Sheriff Leroy Baca ordered deputies to cover any tattoos they had, according to a knowledgeable source who asked to remain anonymous out of fear of reprisal from the department over this controversial issue.
The order is enshrined in the department's Manual of Policy and Procedures. It says on-duty employees must cover tattoos "with a skin-toned patch, long-sleeved uniform shirt, or other material which may be formally approved by the Department."
The manual provides an exception for personnel working investigations "in which visible tattoos may assist in developing investigative credibility."
In 2012, the Citizens Commission on Jail Violence issued a series of recommendations that were largely ignored.
That same year, Baca decided to ban all "unprofessional" tattoos, but he didn't define "unprofessional."
The union challenged his move, and by the time an Employee Relations Commission hearing was scheduled, Jim McDonnell had been elected sheriff. The department dropped the policy and explored various strategies during McDonnell's tenure, but it never settled on anything, at least in part because of the county counsel's caution that any policy could run into First Amendment problems.
"YOU GUYS REALLY OUGHT TO TAKE A STEP BACK"
The county was about to set up a working group to study the issue when Sheriff Alex Villanueva upset McDonnell in the November election.
Now, the county plans to move forward with that plan, Deputy County Counsel Miller told the Oversight Commission last month. It's unclear if there will be any overlap with the Inspector General's probe.
She outlined the types of questions that are outstanding.
"How widespread are these groups? ... How does one join?" Miller asked. "Do you have to be invited to join? ... What behavior do these groups engage in? Is there an initiation, is there specific conduct required to join? Are there hazing activities, how do they treat members of the community, and how do they treat members of the department who are non-members of the group?"
The head of the deputy's union staunchly opposes banning any cliques or tattoos.
"I think you guys really ought to take a step back and realize, it's just a camaraderie thing," said Ron Hernandez, president of the Association of Los Angeles County Deputy Sheriffs.
"The statistics are blown so far out of proportion," he said.
Sheriff Villanueva seems to agree. He has said the problem with cliques is simply "hazing run-amok."
April 23, 10:40 a.m.: This article was updated to include quotes from the Manual on Policy and Procedures on covering up tattoos.
April 23, 1:30 p.m.: This article was updated to include the Oversight Commission's vote directing the Inspector General to investigate deputy cliques.
Stay tuned here for updates on Tuesday's oversight commission meeting.