Campus Notebook: Unattended gun in Capitol bathroom need not concern the public, Capitol Police argued

Capitol Police lawyer said public shouldn't know about an incident in which an officer left a gun in a bathroom

Police line yellow tape is strung up in front of the U.S. Capitol dome. (Bill Clark/CQ Roll Call file photo)
Police line yellow tape is strung up in front of the U.S. Capitol dome. (Bill Clark/CQ Roll Call file photo)
Posted September 11, 2020 at 11:12am

Firearm left in the bathroom? Nothing to see here. Or at least that is what Capitol Police lawyers argued in court.

In January 2015, a Capitol Police officer left their gun stuffed in a toilet cover dispenser in a men’s bathroom inside the Capitol Visitors Center. Then-Sgt. Jodi Breiterman was among the officers who responded to the situation and took a photo of the weapon on her work phone. Months later, she shared the photo with a CQ Roll Call reporter, which resulted in the publication of a story that exposed serious safety hazards and resulted in lawmakers demanding reforms.

Breiterman, a former officer of the year, was later demoted from the rank of sergeant and suspended. She sued the Capitol Police for gender discrimination, and on Sept. 4 the judge ruled in favor of the Capitol Police.

Breiterman plans to appeal the decision, but the recent activity in the matter led CQ Roll Call to look back at an interesting argument the Capitol Police made on whether a gun left in a bathroom stall by an officer is something that concerns the public.

Capitol Police Counsel Kelly Scindian wrote in a 2018 brief that the public should not be informed about such an incident and that Breiterman’s disclosure to the press was in violation of the department’s media policy.

“Plaintiff’s disclosure to the CQ Roll Call reporter also did not address a matter of public concern because it could not be ‘fairly considered as relating to any matter of political, social, or other concern to the community,’” Scindian wrote. Scindian also argued Breiterman was not protected by the First Amendment because she spoke to the reporter in her official capacity.

Scindian said the photo — of an unattended firearm in a public building with some of the most integral individuals in the nation’s government — was not something the public need be concerned about. She argued, in part, that because the gun was found in a restricted area within the Capitol complex, the incident should be kept within the department and concealed from public consumption.

“The information Plaintiff provided to the reporter concerned an internal Department matter that did not implicate public interest,” Scindian wrote. “The gun that was discovered in a CVC bathroom on January 29, 2015 was located in a restricted area of the facility. Only authorized personnel would have access to that area. The gun was quickly recovered by USCP officials and its owner was identified in short order.”

Roy Gutterman, a Syracuse University professor who specializes in First Amendment law, disagrees with the department’s contention.

“I can’t imagine a clearer case of a matter of public interest than finding a gun in a Capitol Hill bathroom, whether it’s a visitors center or a secured hallway,” Gutterman said. “You can’t get any clearer than that as far as a matter of public interest.”

Scindian also focused on how Breiterman initially didn’t have a reason for her sending the photo to CQ Roll Call, and then said she shared it because it was in the public interest.

“In disclosing this information, Plaintiff was not exposing official dishonesty, deliberately unconstitutional action, threats to health and safety, or other serious wrongdoing on the part of the Department,” Scindian wrote.

The tsunami of media attention after the article published, which included a skit on Jimmy Kimmel’s late-night television show titled “Potty Training,” was demoralizing, according to Scindian.

“The Department and its employees were thrust into the international spotlight, critiqued, and lampooned,” she wrote.

The Capitol Police is not subject to the Freedom of Information Act and, as a result, is able to keep a great deal of information confined to the organization.

Navel Academy?

Rep. C.A. Dutch Ruppersberger appears to have not spell-checked his financial disclosure filing for 2019.

The Maryland Democrat, who serves on the board of the U.S. Naval Academy, listed the name of the institution as “United States Navel Academy,” which drastically changes the meaning.