The case is Jackler v. Byrne, decided on July 22. Bergstein & Ullrich, represented the plaintiff, along with the firm of Dupee & Monroe. In this case, the Second Circuit (Kearse, Katzmann and Sack) distinguishes Garcetti v. Ceballos, 547 U.S. 410 (2006) and Weintraub v. Board of Education, 593 F.3d 196 (2d Cir. 2010), which restricted the speech rights of public employees who speak out pursuant to their official duties. This case went into the Garcetti graveyard also, as the district court reluctantly held that Jackler's refusal to falsify the police report was sufficiently related to his official job duties as to bring his expression out of the First Amendment's protections.
The Second Circuit sees it differently. The Court notes that, in Garcetti, the Supreme Court said that two inquiries govern whether employee speech is protected under the First Amendment: "whether the subject of the employee's speech was a matter of public concern and whether the employee spoke 'as a citizen' rather than solely as an employee." Jackler spoke on a matter of concern to the public because "exposure of official misconduct, especially within the police department, is generally of great consequence to the public." Although Jackler did not make an affirmative statement about police misconduct, it is settled law that the refusal to speak is also protected under the First Amendment under certain circumstances. The Court adds, "Jackler had a strong First Amendment interest in refusing to make a report that was dishonest. We think it clear that his refusals to change his statement as to what he witnessed when Metakes struck Jones were directed at a matter of public concern, rather than an effort to further some private interest of Jackler personally. The use of excessive force by a police officer is a matter of serious public concern."
Defendants argued that this case fell within Garcetti's holding that speech relating to official duties falls outside the First Amendment's protections. Not so, the Court of Appeals says:
Although defendants argue that Jackler's refusals were part of his job and that Garcetti requires affirmance because otherwise any employee who simply files a truthful report could claim that his First Amendment rights were implicated because he did not file a false one, we reject that contention because it ignores the context of Jackler's refusals. Jackler's allegation -- which must be accepted as true in the context of judgment on the pleadings -- was that Rickard and Freeman, as directed by Chief Byrne, repeatedly attempted to force him to withdraw the truthful report he had filed and to submit one that was false. In the context of the demands that Jackler retract his truthful statements and make statements that were false, we conclude that his refusals to accede to those demands constituted speech activity that was significantly different from the mere filing of his initial Report.Finally, the Court of Appeals holds that the interests of workplace efficiency (an interest that kills many a Garcetti case) do not outweigh Jackler's interest in refusing to falsify the police report. Likewise, while many Section 1983 cases die on the qualified immunity vine, this one does not. The Second Circuit says that the law in 2006, when Jackler was fired, was clear that exposing government malfeasance was clearly-established. And, "Any uncertainty introduced by Garcetti and Weintraub, which were not decided until after defendants' retaliation against Jackler (and which, for the reasons discussed above, do not deprive Jackler of First Amendment protection for his refusals to lie), would not entitle defendants to qualified immunity because the availability of that defense depends on whether the unlawfulness of their conduct was apparent in light of 'pre-existing law.' Wilson v. Layne, 526 U.S. 603, 615 (1999)."
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