Petersburg’s police chief is suing his employer, the Petersburg Borough, and a federal court in Juneau has dismissed two of the three claims.
The remaining claim, which may go to trial this summer, concerns the police chief’s First Amendment rights.
How it started
In the midst of the pandemic, Petersburg Police Chief Jim Kerr criticized a masking mandate during a borough assembly meeting on Nov. 17, 2021.
Kerr began his virtual testimony by saying, “This is my personal statement, and not the stance or opinion of the Petersburg Borough.”
He then explained his firm opposition and concern about having local police officers enforce the masking mandate.
“If you want the mask mandate enforced, it will be enforced, but only until officers get hired by another police department,” he told the borough assembly. “If we start enforcing mandates and ordinances that divide this community further, officers will move from Petersburg because of the quality of life and conflicts. Let me be clear, I do not support enforcing masking — mask mandates or ordinances. The Petersburg Police Department has worked hard to build a positive relationship with the community it serves … sending officers with guns and arrest powers to a masking complaint is absurd. Using the police department to enforce a masking violation should be viewed as excessive force.”
The next year, Kerr took legal action against the borough, launching what became a years-long litigation that has yet to be resolved.
In the months that followed Kerr’s testimony, Kerr told the borough he had become the subject of retaliatory harassment and intimidation by two assembly members. The borough hired legal counsel to look into the matter, and the investigation’s findings did not favor Kerr.
According to the borough, the investigation showed no unlawful harassment had occurred. It found that Kerr unintentionally violated police department procedure by testifying against enforcing the mask mandate, even if he said it was a personal stance. And it found that his statement wasn’t protected by the First Amendment, especially considering his professional standing as a policymaker.
After KFSK reported a story in June of 2022 with information about the investigation and a statement from the borough, Kerr’s supervisor, Borough Manager Steve Giesbrecht, asked that Kerr submit any future public statements to him for prior review, noting that community members might conflate Kerr’s personal views with official borough positions due to his occupation.
Kerr has since maintained the opinion that he was speaking only as a community member, not as chief of police, when he testified against the masking mandate. He took issue with the borough’s actions and how the legal situation was explained to the public, and he filed a lawsuit in state court to seek reparations for the damage.
Kerr v. Borough of Petersburg
The defendants —the borough manager and the borough— moved the case to federal court. By then, it had been nearly two years since Kerr’s initial testimony.
And on the table before the court were three claims against the borough.
“Technically four claims, with some overlap,” said Goriune Dudukgian, one of Kerr’s attorneys. “There was a defamation claim, a false light claim, and then there was both a state and federal constitutional claim for violation of Chief Kerr’s free speech rights.”
In other words, Kerr’s lawsuit claims the borough defamed him and portrayed him in a false light, violated his constitutional First Amendment rights and that the borough’s policy limits his speech. The defendants disagreed, arguing Kerr’s allegations of restricted speech weren’t made on solid ground.
The court reviewed the claims to see if it could resolve them without having to go to trial — a motion called summary judgment, when the presiding judge determines whether or not a claim should proceed.
And on March 31 this year, U.S. District Court Judge Sharon Gleason dismissed the state defamation and false light claims. Those two claims won’t go to trial.
As for the constitutional claim, the recent court order granted the borough manager (Giesbrecht) immunity, but ruled that the verdict on Kerr’s First Amendment claim would be better determined by a jury, not just the bench, due to unresolved factual disagreements.
The defense attorneys stated in an email that the court order was “very favorable to the Petersburg Borough and Borough Manager Steve Giesbrecht, particularly because summary judgment is a challenging standard to meet.”
Kerr’s attorney Dudukgian said, “We were disappointed by the ruling and we disagreed with it.” However, he added that it narrows the case to only the First Amendment issues.
“I think [Kerr] was very happy about the fact that his free speech claims are moving forward,” said Dudukgian.
Where the case is going
The final steps of this litigation will ultimately decide whether or not the borough violated Kerr’s right to free speech.
Dudukgian said the purpose of Kerr’s claims is to stand up for his rights because “it would just reaffirm for everybody that the borough has to allow its employees their free speech rights.”
He said the case could legally require the borough to change its policy on preapproving Kerr’s statements. He also said they intend to ask the jury for monetary compensation for damages.
“The Borough and Manager Giesbrecht will continue to vigorously defend against the plaintiff’s remaining claims at trial as necessary,” the defense attorneys wrote.
Judge Gleason strongly suggested that the parties try resolving matters outside of the court; the parties plan to attempt mediation in June.
If the parties can’t come to terms, the five-day jury trial is scheduled to happen in August.
