Federal Judge To Rule On Photo Of Rifle-Wielding Public Defender In Front Of Israeli Flag

SKOKIE, IL — A federal judge is set to hear oral arguments in the case of a Cook County assistant public defender who claims her constitutional rights were violated when supervisors prevented her from displaying a picture of her holding a gun in front of the flag of a foreign country.

Debra Gassman filed suit last year after her boss at the Skokie Courthouse confiscated a 20-year-old photograph showing her brandishing an M-16 assault rifle in front of an Israeli flag, citing the office's workplace violence policy.

According to her complaint, Gassman had kept the photo in her office for years without problems. But it became controversial when she moved it into a shared employee mailbox area shortly after the Oct. 7, 2023, attacks.

A hearing is scheduled for later this month before U.S. District Judge Joan Lefkow on a motion to dismiss the case filed on behalf of Cook County Public Defender Sharone Mitchell.

The National Lawyers Guild of Chicago submitted a brief supporting Mitchell, while Los Angeles-based pro-Israel nonprofit StandWithUs filed one backing Gassman.

The motion to dismiss argues that the removal of the photo was a reasonable and content-neutral enforcement of the office's policy prohibiting displays of potentially threatening displays of firearms.

In a letter explaining the photo's removal, Mitchell told Gassman that "posting a photograph of an employee holding a firearm is inappropriate in the workforce."

According to the county's motion, Gassman's office and the employee mailbox area are not designated public forums, so she cannot claim her First Amendment rights were violated as long as the regulations of her speech are reasonable and viewpoint neutral.

No other employees were permitted to post images of themselves brandishing assault rifles, nor were they permitted to make the type of political speech that Gassman said she intended by posting the photo of her with the gun, it said.

"First, allowing a photograph of any co-worker holding an assault rifle to be displayed in a workspace has the real potential to create serious disharmony among co-workers—regardless of its context," argued Assistant State's Attorney Charles Little.

"Second, Public Defender needs to have confidence that all of his staff can work collaboratively in order to represent any client they are assigned, regardless of the employees’ or clients’ ethnicity, race or religion or political views," Little said.

"Third, [Gassman's] expression has called into question her judgment and her ability to work with her approximately 700 co-workers and the tens of thousands of clients served by the Public Defender who may have differing ethnicities and political views from her own," he added.

Little also argued that that time and place where the photo was posted was improper, that Gassman was not speaking as a member of the general public and that she had posted it "seemingly without consideration of the impact" it could have on her co-workers and the public.

Gassman’s attorney, David Fish, counter that the removal of the photograph constitutes unconstitutional viewpoint discrimination, emphasizing that her display of the image expressed solidarity with Israel in the wake of the attacks.

Fish argued the policy was enforced selectively against Gassman, citing other examples of weapon-related displays allowed in the office, including congratulatory posts and physical weapons like swords. He claimed her photo, displayed for over 20 years without prior complaint, was removed due to its political message rather than any actual workplace threat.

According to Gassman's lawyer, the county's policy prohibiting assistant public defenders from speaking to the media or making disrespectful posts on social media is also a restriction on her First Amendment rights.

In the response to the motion to dismiss, Fish contends that the media coverage that the case has received proves that it is a matter of public concern and backs up the notion that it counts as protected speech.

"Further, the Public Defender is charged with defending indigent clients, not opining on the war. It has no compelling interest in regulating private speech regarding matters that have little relationship to its purpose or purview, such as the war in the Middle East," Fish said.

"Moreover, any interest the Public Defender might have in regulating this speech is outweighed by Ms. Gasman’s interest in voicing her views about world events that touch her personally, regardless of whether the Public Defender approves of what she might say."

The National Lawyers Guild Chicago filed a brief in support of the motion to dismiss the case, arguing that the removal of the photograph was a reasonable enforcement of workplace policies.

Attorney Rima Kapitan argued that Gassman's claim that enforcing the office's anti-violence policy equates to censoring the idea that Jewish people have a "right not to be exterminated" is implausible. Instead, the office sought to remove a "threatening and intimidating photo symbolizing violence against a particular ethnic group" from the view of its staff, Kapitan said.

"Although the word 'Palestinian' appears neither in Gassman’s complaint nor in [Mitchell's] Motion to Dismiss, that is of course the ethnic group that is the target of [Israeli military] guns such as the one that appears in Gassman’s picture. The implication throughout the complaint that those guns are used exclusively for defensive purposes is not plausible," Kapitan said, before recounting a history of massacres and killings of civilians by Israeli forces that she said demonstrates that it is reasonable to consider the photo to be threatening.

"Although Palestinians in Gaza and the West Bank have no choice but to live under the gun of the [Israeli military] and [border patrol], employees of the Office of the Public Defender need not," she said.

Pro-Israel nonprofit StandWithUs replied with a brief opposing the motion penned by New Trier Township Supervisor Gail Eisenberg.

"It is plainly a question of fact regarding whether the Public Defender was opposed to Gassman’s viewpoint or ordered the photograph confiscated for genuine safety concerns," Eisenberg said. "The government lacks a compelling interest in censoring its employees’ views on a war taking place abroad and forcing Gassman to remove her photograph depicting her army service is not narrowly tailored."

Eisenberg said the public defender engaged in unconstitutional viewpoint discrimination, arguing that supervisors would not have taken down the photo if she had been standing in front of a United States flag holding a service rifle.

"A photo of an individual proudly standing in front of his/her ancestral or national flag holding a weapon is hardly a threat," Eisenberg said. "It can be an expression of patriotism, solidarity, and pride."

At the heart of the case is the question of whether the public defender's actions were a reasonable application of neutral workplace policies or an unconstitutional suppression of political expression.

There are no indications in any of the court filings that any other county employees posted photos of themselves holding firearms next to foreign flags.

Oral arguments on the motion to dismiss are scheduled for Jan. 22 before Lefkow in Chicago. If it is denied, the case will proceed to the discovery phase.

Earlier: Public Defender Sues To Be Able To Display Photo With Rifle In Front Of Israeli Flag