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Deputy’s attorney questions restraining order

The attorney for a fired Milwaukee County Sheriff’s deputy is questioning the constitutionality of a restraining order the department had placed on the employee.

Daniel Lee McKenzie, 49, was fired after the Milwaukee County Personnel Review Board on Aug. 25 found the deputy guilty of insubordination and harassment of fellow department members, including Milwaukee County Sheriff David Clarke.

Clarke in June petitioned and received a restraining order and injunction against McKenzie in the wake of a May 28, 2010, incident and Facebook comments that contributed to the firing.

The Facebook posts are quoted from author Stieg Larssen.

The first states: “… never let anyone who has insulted you get away with it. Bide your time and strike back when you’re in a position of strength – even if you no longer need to strike back.”

The second post was: “To exact revenge for yourself or your friends is not only a right, it’s an absolute duty.”

But McKenzie’s lawyer is questioning the restraining order because the law provides broader First Amendment rights to public sector workers such as McKenzie to speak out about their coworkers or employers than the law gives to workers in the private sector. The rights, he said, could extend to Facebook posts.

Chris MacGillis of MacGillis Wiemer LLC, Milwaukee, is representing McKenzie in his appeal of his firing, but the attorney formally has not challenged the restraining order.

According to evidence submitted in support of the restraining order, which forbids all contact — written, electronic or in person — with Clarke until 2015, McKenzie’s Facebook comments were deemed threatening in light of conversations he allegedly had about shooting Clarke.

According to court documents, officers testified before the review board that McKenzie had made “charged, violent statements regarding Sheriff Clarke.”

Those included the alleged comments made to colleagues in May 2010.

According to court documents, retired Sheriff’s Deputy Michael Feinberg testified that McKenzie said he saw Clarke leaving the garage and had the “perfect shot” while Clarke was stuck in traffic.

Feinberg said that during their conversation, McKenzie’s mood changed from “overly happy” to “enraged,” and he said, “I shoulda’ taken the shot. I shoulda taken the shot,” according to court documents.

During his testimony, McKenzie denied saying “he” had the perfect shot and merely thought that if he were someone who was going to shoot Clarke and he had a gun, he would take the shot.

According to court documents, McKenzie testified that all of the deputies have been angry with Clarke at some point.

The Sheriff’s Department did not immediately respond to a request for comment.

McKenzie had been suspended without pay since Nov. 29, 2010, after Clarke filed a request for discharge.

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