In a 5-2 decision, the Wisconsin Supreme Court rejected the due process claims of a Milwaukee police officer who was terminated after posting offensive Facebook posts about then-Milwaukee Bucks basketball player Sterling Brown.

May 2, 2024 – The Wisconsin Supreme Court has rejected the due process claims of a Milwaukee police officer whose employment was terminated after he posted offensive Facebook posts about then-Milwaukee Bucks basketball player Sterling Brown.

In Andrade v. City of Milwaukee Board of Fire and Police Commissioners, 2024 WI 17 (April 30, 2024), the Wisconsin Supreme Court ruled (5-2) that the due process rights of the police officer were not violated even though he was not informed of the police chief’s concern that the district attorney would never call him to testify in any future case.

Justice Brian Hagedorn wrote the majority opinion, joined by Justices Ann Walsh Bradley, Rebecca Dallet, Jill Karofsky, and Janet Protasiewicz. Chief Justice Annette Ziegler dissented, joined by Justice Rebecca Bradley.

Offensive Posts

Milwaukee Police Department (MPD) police officers arrested Sterling Brown, then a National Basketball Association (NBA) player with the Milwaukee Bucks, on Jan. 26, 2018. The police alleged that Brown was parked illegally in a handicapped-accessible-only space. Officer Erik Andrade drove Brown to the police station.

For several months after the arrest, Andrade posted offensive content on Facebook, targeting Brown.

In May 2018, the MPD’s internal affairs division (IAD) opened an investigation into Andrade, after a member of the Milwaukee Common Council shared Andrade’s posts.

Lawsuit Over Arrest

In June 2018, Brown sued the city, MPD Chief Alfonso Morales, and the officers involved with his arrest – including Andrade. In the lawsuit, Brown alleged that police used excessive force against him, including the use of a taser gun.

Brown cited Andrade’s Facebook posts in his complaint. On the same day that Brown filed his lawsuit, the Milwaukee Journal-Sentinel ran a story about the lawsuit. The story reprinted some of Andrade’s posts.

IAD sent Andrade a written notice that summarized several of Andrade’s posts, listed two MPD policies implicated by the posts, and listed the date by which Andrade was required to respond. Andrade signed the notice.

Interview with IAD

IAD interviewed Andrade on June 28, 2018. During the interview, IAD had Andrade read aloud the two policies that his posts implicated: one regarding social media use, and one regarding truthfulness and honesty.

In August 2023, IAD charged Andrade, who could only be fired for cause, with: 1) making disruptive social media posts; and 2) failing to inspire confidence in the MPD. The IAD sent the matter to Chief Morales.

Chief Fires Andrade

Chief Morales contacted the Milwaukee County District Attorney’s office and asked whether Andrade’s posts about Brown would affect his credibility as a witness in criminal trials.

The district attorney’s office told Morales that because of the posts, they would never call Andrade as a witness.

On Sept. 12, 2018, Morales found Andrade guilty of both charges. He suspended Andrade for 30 days without pay for making disruptive social media posts and fired Andrade for failing to inspire confidence in the MPD.

Board, Circuit Court Uphold Firing

Andrade appealed his case to the Milwaukee Board of Fire and Police Commissioners (Board) under Wis. Stat. section 62.50(1h).

A hearings examiner held a two-day trial before three commissioners. The commissioners upheld Morales’ decision.

Andrade then filed a writ of certiorari with Milwaukee County Circuit Court. He argued that he didn’t know, prior to the hearing before the commissioners, that his ability to testify was the reason he’d been fired.

The circuit court upheld the Board’s decision. After losing at the Wisconsin Court of Appeals, Andrade appealed to the Wisconsin Supreme Court.

City Gave Due Process

Justice Brian Hagedorn began his opinion for the majority by explaining that under Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), a public employee who can be fired only for cause has a property interest in his employment – an interest that’s subject to the Due Process Clause of the Fourteenth Amendment.

Justice Hagedorn noted that, under Loudermill and its progeny, the required due process must include the following:

• oral or written notice of the charges against the employee;

• an explanation of the evidence against the employee; and

• ​a chance for the employee to tell his or her side of the story.

Andrade argued that he wasn’t given an explanation of the evidence against him, because he didn’t know that the Chief had decided to fire him – instead of merely disciplining him – because the district attorney’s office indicated Andrade would not be called as a witness in the future.

But Justice Hagedorn concluded that Andrade had mixed up the factors that went into the quantum of discipline with the evidence of the violations that occasioned the discipline.

“Loudermill does not require an explanation of the reasons that discharge was the chosen punishment as opposed to suspension or something lesser,” Hagedorn wrote. “Rather, Loudermill just requires an explanation of the basic reasons the employee is being disciplined.”

Justice Hagedorn noted that the IAD investigators had gone over each one of Andrade’s offending posts with him.

“[Andrade] knew that violations such as this could lead to discipline up to and including suspension and discharge,” Hagedorn wrote.

Justice Hagedorn also pointed out that the mandatory appeal process carried out by the Board more than complied with the third due process requirement established by Loudermill.

“The end result was a detailed, ten-page written decision containing findings of fact and conclusions of law, thereby providing a robust substantive, procedural, and evidentiary check on the discipline that Andrade received,” Hagedorn wrote.

Dissent: Andrade Was ‘Robbed’

Chief Justice Ziegler began her dissent by pointing out that Andrade didn’t know that Morales had fired him because the district attorney would never call him again to testify.

That meant the City erroneously deprived Andrade of his interest in employment, Chief Justice Ziegler reasoned.

“Due process guards against the accuser having to guess what the accuser is thinking by requiring the accuser to provide the accused with specific notice,” Chief Justice Ziegler wrote.

“Since Andrade was not placed on notice of the real reason for his termination until post-termination, he was robbed of the ‘full panoply of the due process protections’ that he was owed pre-termination.”

If Andrade had known about Morales’ concern regarding his never being called as a witness again, Ziegler noted, he could have perhaps presented evidence about other officers who were called by the district attorney to testify despite concerns about their bias.