Labor & Employment Law Daily Wrap Up, INDIVIDUAL RIGHTS—9th Cir.: Former police chief’s text messages, including racist memes, were not protected speech, (Jul 10, 2025)

By Jason Albright, J.D.

“The record is clear that the messages were intended for a purely private audience of several friends….”

The former police chief for the City of Rancho Cordova, allegedly forced to resign over allegations that she sent racist text messages, failed to state First Amendment retaliation or conspiracy claims, the Ninth Circuit held again in an amended opinion. Under the circumstances presented by the case, sending private text messages to two friends during “a friendly, casual text message conversation,” forwarding offensive racist spam images, and complaining about the images did not constitute “a matter of legitimate public concern” within the meaning of Pickering, the appeals court found. Judge Callahan’s initial dissent, which had argued that the public concern test “is only loosely applicable,” remained unchanged (Adams v. County of Sacramento, amended by No. 23-15970 (9th Cir. July 9, 2025)).

Sacramento County Sheriff’s Office. The plaintiff began working for the Sacramento County Sheriff’s Office in 1994. She became Chief of Police for the City of Rancho Cordova in March 2020, and in 2021 she was forced to resign from that post over allegations that she sent racist messages.

New Year’s Eve. The messages were sent on New Year’s Eve in 2013, when she was having “a friendly, casual text message conversation” with her coworker and then-friend. The two were exchanging New Year’s wishes, and the plaintiff sent videos of her children playing.

Messages at issue. At some point in the exchange, however, she sent him a text message stating, “Some rude racist just sent this!!” along with two images she had received. The record did not reveal who had sent her the images or their motivation, but from context, according to the court, “it appears that [she] did not know the senders.”

Racist memes. One of the images depicted a white man spraying a young black child with a hose and contained a superimposed offensive racial epithet. The other message included an image of a comedian, with superimposed text containing an offensive racial slur.

The coworker responded, “That’s not right.” The future police chief then replied in a message starting with, “Oh, and just in case u [sic.] think I encourage this...” The remainder of the text was not in the record.

Sent to another coworker. On the same evening, she also texted the same images to another coworker and then-friend, though the record did not reflect if any messages were also sent.

Purely private. “The messages were not posted on social media, nor otherwise made readily discoverable by anyone other than those to whom they were directed,” according to the court, and the record was clear that the messages “were intended for a purely private audience of several friends in the context of private, social exchanges during ‘a friendly, casual text message conversation.’”

Seven years. Seven years passed without further incident, according to the court. However, during that period, her friendships with the two coworkers deteriorated. In 2015, she was promoted to Assistant Chief of Police for the City of Rancho Cordova.

Forwarded allegation about second coworker. In 2019, she was informed of potential misconduct on the part of the second coworker, and she forwarded the allegation to the Department’s Internal Affairs Division.

Anonymous misconduct complaints. After the second coworker learned of her report, several anonymous misconduct complaints were lodged against the plaintiff—none of which were substantiated.

EEO complaint against coworker. Then, in July 2020, the plaintiff filed a formal complaint of harassment and retaliation against the second coworker with the County’s EEO office. During the investigation, the second coworker provided print-outs of the text messages that the plaintiff had forwarded in 2013, but she did not provide the surrounding text commentary from the plaintiff.

Investigation commenced. The department then began an investigation of the police chief herself. During the investigation, the first coworker provided his mobile phone showing the 2013 texts.

Resign or be fired. The department then gave her a choice to resign or be “terminated and publicly mischaracterized as a racist.” An attorney for the County told her that if she agreed to resign, the investigation would never become public, but if she refused to resign, “the investigation would fuel a ‘media circus’” in which she would be labeled a racist. She chose to resign in September 2021.

NAACP letter. Six months later, in March 2022, the President of the Sacramento chapter of the NAACP published an open letter stating that the former police chief had sent racially charged pictures to other Sheriff’s Department employees. The letter described the image of the child being sprayed with a hose and called for accountability.

Newspaper article.The Sacramento Bee then published an article repeating the open letter’s allegations.

Consequences. The plaintiff then resigned from her longtime adjunct teaching position at a local university, and two prospective employers ended their consideration of her. She also claimed that ensuing anxiety, stress, and depression were “caused by the significant blows to her professional career and personal reputation.”

Lawsuit. In August 2022, she sued the County of Sacramento, the Sheriff, and several unnamed individuals, alleging: (1) denial of procedural due process; (2) breach of contract; (3) deprivation of the right to free speech under the First Amendment; (4) First Amendment conspiracy; (5) false light invasion of privacy; (6) false light conspiracy; (7) intentional interference with prospective economic advantage; and (8) intentional infliction of emotional distress. The only causes of action at issue in the interlocutory appeal before the court were her claim for violation of her right to free speech under the First Amendment and her derivative First Amendment conspiracy claim.

Decision below. The district court granted the defendants’ motion to dismiss her first complaint for failure to state a claim, but it granted her leave to amend, and after she amended her complaint, the district court dismissed the First Amendment claims with prejudice for failure to plead that the text messages constituted speech “on a matter of public concern.”

The district court held that “sen[ding] racist images, along with [her] disapproval of the images”—as she described it—was not speech on a matter of public concern because she “ma[de] no allegations that her speech concerned either racism in her community or racism in the police department.” In its initial dismissal, the court recognized that her speech was not on a matter of public concern “because the speech was intended to be private and [did] not relate to the personnel or functioning of the Department.”

Interlocutory appeal. She timely sought certification of the partial dismissal order for interlocutory appeal, the defendants did not oppose, and the district court granted certification. A motions panel of the Ninth Circuit then granted her petition for permission to file the interlocutory appeal, and on September 9, 2024, the panel affirmed the district court’s dismissal.

Amended opinion. In its amended opinion, the same panel again concluded that the police chief’s text messages did not address a matter of public concern within the meaning of Pickering. The majority’s principal additional observation addressed an argument, raised in Judge Callahan’s—unchanged—dissent, that “the majority applies an inordinately robust version of the public concern test in this case that barely implicates its animating principles.”

The majority added in its amended opinion that, in Dible v. City of Chandler, 515 F.3d 918, 926-28 (9th Cir. 2008)—which the dissent had cited as an example of various courts questioning whether the public concern test should apply at all to employee speech unrelated to their employment—the appeals court had assumed, without deciding, that the “public concern” test does not apply as “a necessary threshold” for off-duty, non-work-related speech. Whether the test does, in fact, apply to such speech, however, “is an issue not properly raised in this case by the parties in their briefs or at oral argument.” The Ninth Circuit thus declined to address that question here. “Instead,” it said, “we proceed on the assumption that the ‘public concern’ standard as applied to workplace speech is applicable.”

The case is No. 23-15970.

Judge: Thomas, S.

Attorneys: Harmeet Dhillon (Dhillon Law Group) for Kate Adams. David Norton (Porter Scott) for County of Sacramento.

Companies: County of Sacramento

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