City of Ontario v. Quon

PETITIONER:City of Ontario, California et al.
RESPONDENT:Jeff Quon, et al.
LOCATION: Ontario Calif. Police Department

DOCKET NO.: 08-1332
DECIDED BY: Roberts Court (2009-2010)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 560 US 746 (2010)
GRANTED: Dec 14, 2009
ARGUED: Apr 19, 2010
DECIDED: Jun 17, 2010

Dieter Dammeier
Kent L. Richland – for the petitioners
Neal Kumar Katyal – Deputy Solicitor General, Department of Justice, for the United States, as amicus curiae, supporting the petitioners

Facts of the case

Employees of the City of Ontario, California police department filed a 42 U.S.C. § 1983 claim in a California federal district court against the police department, city, chief of police, and an internal affairs officer. They alleged Fourth Amendment violations in relation to the police department’s review of text messages made by an employee on a city issued text-message pager. While the city did not have an official text-messaging privacy policy, it did have a general “Computer Usage, Internet and E-mail Policy.” The policy in part stated that “[t]he City of Ontario reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice,” and that “[u]sers should have no expectation of privacy or confidentiality when using these resources.” Employees were told verbally that the text-messaging pagers were considered e-mail and subject to the general policy. The district court entered judgment in favor of the defendants.

On appeal, the U.S. Court of Appeals for the Ninth Circuit reversed in part. The court held that city employees had a reasonable expectation of privacy for the text messages they sent on their city-issued pagers because there was no text message privacy policy in place. Moreover, the court noted that the police department’s review of the text messages was unreasonable because it could have used “less intrusive methods” to determine whether employees’ had properly used the text messaging service.


1) Does a city employee have a reasonable expectation of privacy in text messages transmitted on his city-issued pager when the police department has no official privacy policy for the pagers?

2) Did the Ninth Circuit contravene Supreme Court precedent by analyzing whether the police department could have used “less intrusive methods” of reviewing text messages?

Media for City of Ontario v. Quon

Audio Transcription for Oral Argument – April 19, 2010 in City of Ontario v. Quon

Audio Transcription for Opinion Announcement – June 17, 2010 in City of Ontario v. Quon

John G. Roberts, Jr.:

Justice Kennedy has our opinion this morning in case 081332, City of Ontario, California versus Quon.

Anthony M. Kennedy:

The City of Ontario is a political subdivision of the State of California.

This case arose out of incidents when Jeff Quon was employed by the Ontario Police Department.

He was a Police Sergeant.

He was also a member of the Special Weapons and Tactics Team, those teams are commonly known as SWAT.

The city issued pagers to Quon and other SWAT team members and these pagers could send and receive text messages.

Under the city’s service contract, each pager, and therefore each employee who had one, was allotted a limited number of characters sent or received each month.

Use in excess of that amount would result in an additional fee.

Within the first or second billing cycle Quon exceeded his monthly allotment.

Lt. Duke was the officer in-charge of the pagers.

He reminded Quon that under city policies messages sent on the pagers were not private and could be audited and Duke told Quon that Duke could audit the messages, but he suggested that Quon instead, reimburse the city for the entire overage fee to make an audit unnecessary.

Quon wrote a check for the city for the overage.

Over the next few months, Quon and other employees exceeded their character limits various times.

Eventually Duke informed the city — the Chief of Police who Chief Lloyd Scharf that he was tired of being a bill collector.

Chief Scharf decided to audit the messages on Quon’s pager as well as those of another employee who had exceeded his allowance in order to determine whether the existing character limits were too low and officers were having the pay for work related messages.

The audit revealed that Quon sent numerous personal messages while on duty.

Some were sexually explicit.

Quon was found to have violated department rules.

Quon and other respondents who were individuals who of course corresponded with and communicated with Quon on his pager, filed suit.

They alleged that the city, the department and the Chief Scharf had violated their Fourth Amendment rights when reviewing the transcript of — and the text of Quon’s messages.

The District Court ruled for the defendants but the United State’s Court of Appeals for the Ninth Circuit reversed.

The panel concluded that Quon had a reasonable expectation of privacy in the context of his messages and that the trans — and that the defendants had unreasonably violated that expectation by reviewing the transcript.

We granted certiorari.

The Fourth Amendment forbids “unreasonable searches and seizures” and that provision guarantees the privacy, dignity, and security of persons against arbitrary an invasive acts by officers of the government.

The Fourth Amendment applies when the government acts in its capacity as an employer.

The Court’s precedents have not definitively established how to determine when and weather an employee has a reasonable expectation of privacy in the workplace.

Cell phone and text messages — and their and related communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self identification.

That might strengthen the case for an expectation of privacy.

On the other hand, one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own and employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that the employer policies are clearly communicated.

We need not explore these matters further in this case however.

Anthony M. Kennedy:

That is because even on the assumption that Quon had a reasonable expectation of privacy in his text messages, the search was reasonable.

The search was justified by a legitimate work-related rationale.

Chief Scharf ordered the search in order to determine whether the character limit on the city’s contract was sufficient to meet the city’s needs.

The department had a legitimate interest in ensuring that employees were not being forced to pay out of their own pocket for work-related expenses or on the other hand that the city was not paying for extensive personal communications.

As for the scope of the search, reviewing the transcripts was reasonable because it was an efficient and expedient way to determine whether Quon’s overages were the result of work related messaging or personal use.

The fact that Quon likely had only a limited privacy expectation, lessened the risk that the review would intrude on highly private details of his life.

But if a search happened to reveal intimate details of Quon’s life, does not make it unreasonable.

In concluding that the search was unreasonable the Court of Appeals pointed to ways that the search could have been conducted that would be less intrusive on Quon’s privacy.

This approach was inconsistent with controlling precedents.

This Court has repeatedly refused to declare that the only — that only the least intrusive search practicable can be reasonable one under the Fourth Amendment and that’s because judges engaged in post-talk evaluations of government conduct can almost always imagine some alternative means by which the objectives of the government might have been accomplished.

The analytic errors of the Court of Appeals in this case illustrate the necessity for this principle.

The judgment of the Court of Appeals is reversed.

The case is remanded for further proceedings consistent with the Court’s opinion.

The Court’s judgment is unanimous.

Justice Stevens has filed a concurring opinion, Justice Scalia has filed an opinion concurring in part and concurring in the judgment.