Saturday, July 23, 2011

Bergstein & Ullrich prevail in public employee free speech appeal

By Larry Neumeister, Associated Press

July 22, 2011

NEW YORK — A federal appeals court Friday breathed new life into the claims by a probationary police officer in upstate New York that his First Amendment rights were violated when he was fired for refusing to lie about an excessive force claim against a fellow officer.

The 2nd U.S. Circuit Court of Appeals in Manhattan reinstated Jason Jackler's lawsuit against the police chief and others in the Middletown Police Department, reversing a lower court judge who had reluctantly rejected his arguments on the grounds that Jackler's speech was in his official capacity and not as a citizen.

"The government as an employer has broad discretion to manage its operations. But that discretion does not include authority to coerce or intimidate its employees to engage in criminal conduct by filing reports that are false in order to conceal wrongdoing by another employee or to conceal eyewitness corroboration of civilian complaints of such wrongdoing," the three-judge panel wrote.

The police department did not say in legal papers that it agreed with Jackler's claims that he was ordered to change his report but the department and the court had to accept the claims as fact at this stage of the court proceedings. As the case proceeds toward trial, interviews will be conducted and documents will be analyzed by both sides to clarify the facts.

In returning the case to U.S. District Judge Cathy Seibel in White Plains, the appeals court also indicated it disagreed with her when she said she believed that the defendants might win dismissal of the case on the grounds that they enjoy immunity from the lawsuit because of their government positions.

"Though a mere mistake in the performance of an official duty may not deprive the officer of the defense, the qualified immunity doctrine does not shield performance that either was in violation of clearly established law or was plainly incompetent," the appeals court said.

Jackler said he was fired in January 2006, days after refusing to alter a report in which he said another officer struck a disorderly conduct suspect in the face. He had been a probationary officer since January 2005. His lawsuit seeking unspecified damages named the Middletown police chief and other police lieutenants and administrators.

Brian Sokoloff, a lawyer for the police defendants, said of the ruling: "We need to digest it and consider what our options are."

Stephen Bergstein, a lawyer for Jackler, who now works elsewhere in Orange County as a police officer, predicted the ruling would make it easier nationwide for police officers to speak out against wrongdoing.

"Police officers shouldn't have to worry about losing their jobs for standing up for the right thing," he said. "This was a pretty resounding win for police officers like Jackler who normally would be afraid to speak out.

The 2nd Circuit said a series of court cases have made clear that a citizen who enters government service must accept certain limitations, but those limits narrow on issues of public concern.

"Police malfeasance consisting of the use of excessive force is plainly a matter of public concern," the court wrote. "In sum, it is clear that the First Amendment protects the rights of a citizen to refuse to retract a report to the police that he believes is true, to refuse to make a statement that he believes is false, and to refuse to engage in unlawful conduct by filing a false report with the police."

Jackler's actions, the court said, has a "clear civilian analogue and that Jackler was not simply doing his job in refusing to obey those orders from the department's top administrative officers and the chief of police."

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