No speech claim where officers exposed police misconduct

The fallout from the Supreme Court's ruling in Garcetti v. Ceballos, 547 U.S. 410 (2006), continues. Garcetti holds that public employees who speak out on matters of importance cannot sue for workplace retaliation if their speech grew out of their official job duties. What used to be a lively First Amendment retaliation jurisprudence in the Second Circuit has been reduced to routine summary orders throwing out cases that would have gone to trial only six years ago. The reason for this is that the best whistleblowing necessarily grows out of the plaintiff's job duties. Another such summary order has come down the pike involving police misconduct.

The case is Carter v. Village of Ocean Beach, decided on March 18. Since this case is a non-binding summary order, the Court of Appeals (Winter, Sack and Livingston) does not tell us much of what happened, other than the following:

The district court found that, even if plaintiffs’ factual claims were credited in full, they established only that plaintiffs spoke “pursuant to their official duties” and thus “not . . . as citizens for First Amendment purposes.” Garcetti, 547 U.S. at 421. We agree. Plaintiffs’ allegations establish no more than that they reported what they believed to be misconduct by a supervisor up the chain of command—misconduct they knew of only by virtue of their jobs as police officers and which they reported as “part-and-parcel of [their] concerns about [their] ability to properly execute [their] duties.” Weintraub v. Bd. of Educ., 593 F.3d 196, 203 (2d Cir. 2010); see also Garcetti, 547 U.S. at 421 (“speech that owes its existence to a public employee’s professional responsibilities” is made “pursuant to” that employee’s “official duties”). As such, they were not engaging in constitutionally protected speech at any relevant time and cannot make out a First Amendment claim.

To learn more about the case, you have to look at the district court opinion, which outlines what the plaintiffs actually said on the job:

All of plaintiffs' complaints to their superiors at the OBPD related to their concerns about their ability to properly execute their duties as police officers, as they expressed concern, inter alia, that the assignment of officers to chauffeur intoxicated officers left the OBPD short-handed, that the hiring of uncertified officers and the retention of unqualified and/or corrupt officers affected their ability to perform their job assignments safely and that they were told not to issue summonses to certain individuals and businesses. Plaintiffs' speech in challenging the Ocean Beach defendants' alleged cover-ups of officer misconduct, including their complaints to the Suffolk County District Attorney's Office, was undertaken in the course of performing one of their core employment responsibilities of enforcing the law and, thus, was speech made pursuant to their official duties. Moreover, all of the relevant speech reflected plaintiffs' special knowledge about the Ocean Beach defendants which was gained as a result of plaintiffs' position as police officers for those defendants based upon what plaintiffs' observed or learned from their job. "Restricting speech that owes its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen." Garcetti, 547 U.S. at 421-422.

That's a lot of speech there. Pre-Garcetti, this was a good case. Post-Garcetti, everyone goes home. The officers spoke up about corruption and malfeasance at their police department. The plaintiffs tried to get around Garcetti and Weintraub by arguing that they went outside the chain of command. The district court shoots down that argument: "Although plaintiffs allege that they also complained of misconduct within the OBPD to the Village Board of Trustees, that is the entity with the authority to hire and fire police officers of the OBPD and, thus, was an upper echelon of plaintiffs' 'chain of command.'"