City of Ontario v. Quon

The United States Supreme Court has agreed to consider the case of City of Ontario v. Quon. The grant of review is encouraging as it provides an opportunity to overturn a bad decision from the Ninth Circuit Court of Appeals. The court concluded the city of Ontario violated the Fourth Amendment when it reviewed an employee's personal text messages that were sent on a city-issued pager.

The facts of the case are as follows:

Jeff Quon, an Ontario police sergeant, used his city-issued pager to send and receive hundreds of personal messages.

His activity did not comply with the city's policy which limited the use of city computers, the internet, and e-mail to city business. The personal messages were discovered during an audit which was prompted by Quon's intense pager usage.

Under the city's contract with its wireless provider, each pager was subject to a monthly character limit, after which the city was responsible for overage charges.

The police chief ordered a review of the transcripts of Quon's pager that consistently exceeded the monthly limit. The review revealed that Quon, on average per shift, sent and received 28 messages, only three of which were business-related.

The sergeant sued the city asserting the review violated his Fourth Amendment right to be free from unreasonable searches and seizures.

Quon argued that prior to the police chief's audit, a lieutenant in the department established an informal practice of allowing officers to go over the monthly character limit so long as the officer paid overage charges. This informal practice, according to Quon, gave him a reasonable expectation of privacy in the messages. The Ninth Circuit agreed.

The Ninth Circuit's decision is problematic for several reasons:

• It allows one city employee to change an established city policy without authority; and
• The opinion ignores that at any time, such messages could be subject to disclosure under the California Public Records Act. Accordingly, an employee cannot reasonably maintain an expectation of privacy in these messages.

The League will notify members on the status of the Supreme Court's review and decision.

The League would like to thank Nancy B. Thorington and Joseph M. Quinn of Meyers Nave for drafting the League's amicus brief in support of review.