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Ajay Krishnan Fights for Free Speech Rights

The Trinity Journal

Trinity County Deputy Mark Potts has sued Sheriff Bruce Haney, the Sheriff's Department and Trinity County, saying his free speech rights were violated when he was officially reprimanded for writing letters to the editor of The Trinity Journal.

Potts, who ran for sheriff in 2010, has been employed by the Sheriff's Department for about 10 years, from 2000 to 2004, and 2007 to present. He has been a frequent contributor of letters to the editor of the Journal, expressing libertarian views on topics ranging from drug laws to the Constitution.

The complaint filed by San Francisco Ajay Krishnan of Keker & Van Nest and Linda Lye, an attorney for the American Civil Liberties Union Foundation, says Potts was not on duty when engaging in his letter writing, nor did he use county resources such as computers.

"Mr. Potts' letters have never caused a disruption of the workplace, affected the performance of his job duties, or otherwise interfered with the operations of the Sheriff's Office," the complaint says.

The complaint says during the summer of 2011, Sheriff Haney and Undersheriff Ken Langston told Potts in a meeting that the district attorney had threatened not to prosecute any cases he investigated if he continued to write letters to the editor, and he needed to stop.

Potts sought information on what topics would be acceptable for letters, but never got a response, according to the complaint.

In February 2012, Potts received a formal written reprimand, recorded in his personnel file, informing him that with the letters he had violated provisions of the Office Policy Manual, prohibiting conduct that is “unbecoming a member of the office” or that reflects “unfavorably upon the office,” as well as speech that “tends to compromise or damage the mission, function, reputation or professionalism” of the office. The notice also informed Potts that any further violations of the manual could result in additional disciplinary employment action, including termination.

As a result, the complaint says, Potts ceased writing letters to the editor. Attorneys for Potts have written the Sheriff's Office and County Counsel Derek Cole asking that the reprimand be expunged and enforcement of the policy that affects his letter-writing to the Journal be ceased.

The reprimand violates Potts' rights guaranteed by the First and Fourteenth Amendments to the U.S. Constitution, the complaint says, calling the policies cited "vague" and "overbroad."

The lawsuit does not seek money but rather an injunction prohibiting the department from implementing or enforcing the policies Potts is accused of violating, that they be found unconstitutional and his reprimand be rescinded.

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Ajay Krishnan focuses on complex commercial disputes and intellectual property litigation. He has tried a number of cases to verdict, including three as first chair. Mr. Krishnan also has a thriving pro bono practice, and has litigated numerous civil rights cases in state and federal court.