THE VIRGINIAN-PILOT 
              Copyright (c) 1995, Landmark Communications, Inc.

DATE: Thursday, November 2, 1995             TAG: 9511020360
SECTION: LOCAL                    PAGE: B3   EDITION: FINAL 
SOURCE: BY LAURA LaFAY, STAFF WRITER 
                                             LENGTH: Short :   49 lines

APPEAL COURT REVERSES DECISION THAT FAVORED BEACH POLICE OFFICER PATROLMAN ACCUSED BOSS OF OBSTRUCTING JUSTICE, WAS FIRED.

A three-judge panel of the 4th U.S. Circuit Court of Appeals this week reversed the case of a Virginia Beach police officer who was fired after accusing his supervisor of obstructing justice.

Brendhan B. Harris, a patrolman and six-year police veteran, swore out warrants against his supervisor after the lieutenant, Gary Van Auken, ordered him not to arrest a woman who allegedly had assaulted Harris in August 1992.

Harris subsequently was fired.

Harris sued the city of Virginia Beach and seven municipal officials on grounds that they violated his constitutional right to free speech.

A federal jury awarded Harris $367,412 last year, an amount later reduced to $140,090. In addition, U.S. District Judge Raymond A. Jackson ordered Virginia Beach to reinstate Harris with $43,000 in back pay and benefits, plus reasonable attorney's fees.

In a 2-1 decision released Monday, the Court of Appeals' panel reversed Jackson because, the majority ruled, Harris' exercise of free speech was not civic-minded enough to be protected by the First Amendment.

According to the appellate opinion, Harris' charge that his supervisor had broken the law was a form of ``criticism at the way his superiors treated his actions.'' It did not relate to a matter of ``true public concern.''

The speech in question ``not only concerned what was an employment dispute, but also was voiced in such a manner that indicated Harris was acting as a state employee rather than as a private citizen,'' wrote the court.

One member of the panel, visiting 8th Circuit Judge Gerald W. Heaney, disagreed with the ruling.

``Speech disclosing public corruption is a matter of public interest and therefore deserves constitutional protection,'' said Heaney, quoting case law.

Harris, who remains on duty, is considering his next step, his attorney, A.W. Vandermeer, said Wednesday.

``There are a variety of potential options that we're taking a look at,'' said Vandermeer. ``We could file a petition for a (full-court) rehearing with the 4th Circuit, or we could petition the (U.S.) Supreme Court'' for an opinion.

``We are also exploring other measures that would allow Officer Harris to continue serving in the Virginia Beach Police Department.'' by CNB