The federal courthouse in Tucson.
A judge has given the Pima County Sheriff’s Department 24 hours to clarify their policy on what deputies are allowed to wear while protesting, following a ruling in a lawsuit against Sheriff Chris Nanos.
Attorneys for both PCSD and Sgt. Aaron Cross gave oral arguments in court today for Cross’ claim that Nanos violated his First Amendment rights by placing him on leave after he carried a sign that said “Deputies Don’t Want Nanos” while wearing clothing similar to that of a deputy.
The suit asked for a preliminary injunction, which is a legal order that would have prevented the department from taking any more disciplinary action against Cross until a final decision. As well as being placed on leave, Cross is under a gag order handed down by Nanos and can't speak about his case.
In the ruling, Judge Raner C. Collins wrote Cross’ case did not meet the qualifications for a preliminary injunction, but agreed that PCSD’s policy on what clothing violates the Hatch Act is ambiguous.
The Hatch Act limits certain political activity of government employees, and when it comes to law enforcement, campaigning while in uniform can constitute someone using their official authority to influence an election, and is generally prohibited.
Multiple deputies saw Cross on the dates in question. According to memos included as part of court documents, employees saw him wearing green battle dress uniform pants (BDU) and a tan long-sleeve shirt on the first occasion Oct. 12. After being told to not look like a deputy, he wore khaki BDU pants and a gray athletic shirt to the second event on Oct. 14.
VIEW LARGER A photograph of Sgt. Aaron Cross holding a political sign at the intersection of Ina and Thornydale in Tucson, Ariz., on Monday, Oct. 14. In oral arguments, Cross’ lawyer Steve Serbalik focused on exactly what constitutes “looking like a deputy.” The language refers to the command Captain Juan Carlos Navarro, gave Cross after he became aware of his first political demonstration on Oct. 12.
Serbalik emphasized that no clothing Cross wore was issued by PCSD or had any official badges, logos, or insignia on them, although in the original lawsuit acknowledged that his Oct. 12 outfit was “similar in style and color to those of on-duty deputies.”
Attorneys for PCSD argued that Cross’ outfit in its entirety, including the fact he wore a tactical belt, handcuffs, and a gun, gave the appearance of an on-duty officer, and that Cross had ignored a direct order from Navarro.
Multiple photos of Cross protesting on the corner of Ina and Thornydale were included in court documents, and Collins agreed that he “was certainly attempting to look like an on-duty deputy.”
When the judge asked him the last time he protested, Cross said as recently as Oct. 27. To get around the questions of appropriate clothing, he said he wore a cowboy Halloween costume.
Despite not qualifying for an injunction, the judge agreed with Cross that the uncertainty surrounding what clothes are appropriate for PCSD policy could have a chilling effect on other officers wanting to protest while off-duty.
“The Court will require Defendants to submit a more definite description of what clothing an off-duty employee is prohibited from wearing, including colors, clothing types, and any other indices it believes create the appearance of official authority in violation of the Hatch Act,” Collins wrote.
Both sides are calling the ruling a win.
“The Federal Court ruled in favor of Pima County Sheriff Chris Nanos, determining that the plaintiff intended to imitate an on-duty deputy, which is prohibited by the Hatch Act. The order speaks for itself,” wrote Public Information Officer Adam Schoonover in an email.
Following the ruling, Cross said he is pleased with the judge’s instruction to Nanos.
PCSD has until Oct. 29 at about 1:30 p.m. to specify what clothing is prohibited, according to the judge’s ruling.
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