The Pima County Sheriff’s Department has 24 hours to clarify its policy on what off-duty employees cannot wear while protesting or engaging in political activity, according to a federal judge’s ruling Monday.
“The Court is concerned that these colors and clothing items are not clearly defined, and that the ambiguity could have a chilling effect on others who wish to exercise their right to protest while off duty,” said Senior U.S. District Judge Raner C. Collins. The ruling followed a morning hearing related to how department employees can campaign around the election for Pima County sheriff on Nov. 5.
Union leader and department Sgt. Aaron Cross has campaigned off-duty against the reelection of incumbent sheriff Chris Nanos by protesting with a sign reading “Deputies don’t want Nanos.” Cross was put on administrative leave for participating in political speech while wearing clothing that too closely resembled his deputy uniform, the department said.
In response, Cross sued Nanos for civil rights violations. Monday’s hearing was an expedited effort to resolve the dispute as the election approaches.
The ruling Monday said the sheriff department’s description should include colors, clothing types and any other specific indicators that the department believes would create the appearance of official authority and therefore should not be worn while off-duty employees engage in political speech.
The sheriff’s department has said Cross is allowed to protest while off duty, but said in a press release that he was put on administrative leave for “participating in political activities while wearing tan BDU cargo pants, tan boots, a gray t-shirt, a weapon in a holster, and his magazine pouch with handcuffs.”
The department argued Cross had violated the Hatch Act, a federal law that limits certain political activities by local government employees to ensure programs are administered in a nonpartisan manner.
The department also placed Heather Lappin — the Republican candidate vying for Nanos’ job and a lieutenant in the Pima County jail — on leave at the same time. Her dispute with the department was not part of Monday’s ruling. Lappin is still on leave and under a gag order that keeps her from speaking about the dispute with about a week left until Election Day.
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In the judge’s ruling Monday, he said both sides brought valid arguments to the case.
“The Court acknowledges the seriousness of this issue, and agrees that the PCSD [Pima County Sheriff’s Department] directive is unclear and ambiguous,” the ruling said. “The Court also understands the Department’s concern that Plaintiffs should not engage in political activities looking like on-duty deputies (i.e. handcuffs, tactical belt, boots, Department colors, and Department issued clothing).”
The attorney representing Cross, reached by phone Monday afternoon, said he welcomed the ruling even though it did not grant his client’s request for a preliminary injunction.
“We are glad that the judge is ordering the PCSD to clearly define what their expectations are for deputies’ off-duty contact,” said Steve Serbalik. “We maintain that off-duty deputies have the right to wear any apparel worn by members of the general public.”
Nanos has defended his decision to place Cross and Lappin on leave, noting concerns expressed by members of the public as contributing to the urgency around his action. “The decision to place two individuals on leave was driven by the report of behaviors that are suspected of falling under prohibited actions in a number of relevant places in law and policy,” he said in an Oct. 23 memo to the Pima County Board of Supervisors.
At Monday’s hearing, Cross said he has most recently been protesting against the reelection of Nanos while wearing a Halloween cowboy outfit.
The sheriff’s office did not respond to a request for comment from Arizona Luminaria.
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