Inmates have more speech rights than police officers

You know how people claim that the inmates have taken over the asylum, or that the criminals have more rights than the rest of us? Usually we roll our eyes at these complaints. The inmates have yet to take over the asylum, but an argument can be made that criminals have more rights under the First Amendment than police officers.

Two cases bear this out. Let's start with Kotler v. Donelli, a summary order from the Court of Appeals decided on June 24. Kotler is locked up at Bare Hill Correctional Facility. He participated in the inmate grievance program. He claims that, in retaliation for his involvement with that program, corrections officers set him up for discipline by planting a weapon in his cell. In a summary order, the Court of Appeals (Calabresi, Pooler and Chin) reverses summary judgment and reinstates Kotler's case because Kotler disavows ownership of the weapon, defendants have offered inconsistent testimony about how they found the weapon and one of them expressed a desire to knock Kotler off the grievance program.

This case is treated as a routine matter. The Court notes that the parties agree that Kotler engaged in protected First Amendment activity in serving in the grievance program, and the Second Circuit notes in passing that one of its precedents from 2002 confirms that inmates have the First Amendment right to file grievances over the conditions of their confinement. God knows what Kotler did to land himself in Bare Hill, but even convicts cannot suffer retaliation for asserting their First Amendment rights.

What about the police officers who arrested Kotler, landing him in jail in the first instance? Michael Kaplan is a New York City Police Officer who blew the whistle on his supervisor, Crisafi, telling City investigators that Crisafi engaged in a laundry list of misconduct, including taking prescription drugs on the job, accidentally discharging his weapon while on duty, violating suspects' Miranda rights, working outside jobs during work hours and using the sirens and lights on his police car without authorization. Kaplan then suffered retaliation from fellow officers. Crisafi sabatoged Kaplan's work and someone fired bullets at Kaplan house and his house was vandalized. Kaplan's other supervisors also retaliated against him for piercing the blue wall of silence, confining him to desk duties and denying him training, classic acts of retaliation. These events gave rise to Kaplan's suit against the City, as a co-plaintiff in Kotler v. Crisafi, 2010 WL 2428128 (S.D.N.Y. June 15, 2010).

Kaplan cannot sue the City for retaliation under the First Amendment. In 2006, the Supreme Court held in Garcetti v. Ceballos, 547 U.S. 410 (2006) that public employees who speak pursuant to their official duties are not engaging in free speech but unprotected work speech that carries no protection under the First Amendment against retaliation. Garcetti certainly scaled back the rights of public employees, who used to be able to sue for retaliation in connection with any speech that raised matters of public concern in the workplace.

Kaplan's complaints about Crisafi certainly raised matters of public concern. If Kaplan's speech was true, then Crisafi was a bad cop, and society has an interest in identifying and punishing bad cops. In ruling on the City's motion to dismiss Kaplan's complaint, Judge Rakoff holds that, under the Second Circuit's interpretation of Garcetti, Kaplan has no case under the First Amendment. That Second Circuit case is Weintraub v. Board of Education, 593 F.3d 196 (2d Cir. 2010), which held that a school teacher's grievance about the way his school disciplined a violent student constituted unprotected speech pursuant to his official job duties because it was "part-and-parcel of his concerns" about his ability to "properly execute his duties," namely to maintain classroom discipline.

Although Judge Rakoff is reluctant to dismiss Kaplan's complaint, his ruling is a faithful application of Weintraub. He notes that "[j]ust as the speech in Weintraub was in furtherance of the teacher's duty to maintain classroom discipline, Kaplan's speech here, which related to ensuring the 'safety of citizens' and the 'constitutional rights of suspects,' was made in furtherance of his law enforcement duties as an investigator endowed with the power to arrest." As it was Kaplan's job to speak out like this, it is not free speech but work speech. He has no retaliation claim, and the ugly reprisals alleged in his complaint cannot predicate this First Amendment lawsuit. The inmate plaintiff in Kotler gets to file a grievance without fear of retaliation. Weintraub and Kaplan cannot.

These distinctions between inmate rights and public employee rights represent the ultimate quirk in modern constitutional law. Courts are now routinely dismissing case after case alleging retaliation on the basis that the police officer's free speech is not protected speech at all but official job speech for which there is no constitutional protection against retaliation. The erosion of public employee rights under the First Amendment carries with it the ultimate irony: they now have fewer rights than the guys they arrested and placed in jail.