Monday, February 27, 2012

Supreme Court denies certiorari in Jackler v. Byrne

In July 2011, the Second Circuit held that a police officer could sue his superior officers who retaliated against him for refusing to falsify a police report that implicated a sergeant in police brutality. In distinguishing Garcetti v. Ceballos, 547 U.S. 410 (2006), Jackler v. Byrne is among the few decisions in the Second Circuit that holds that a public employee's workplace speech is protected. On February 27, 2012, the Supreme Court denied certiorari in Jackler.

Jackler received attention because of its dramatic facts and the Second Circuit's holding that this police officer engaged in free speech in refusing to comply with the command that he falsify the police report. Ever since the Supreme Court issued Garcetti, more and more public employee First Amendment retaliation cases have been dismissed on the basis that the speech was pursuant to the employee's official job duties. While Jacker witnessed an act of police misconduct and initially filled out a truthful report pursuant to his official job duties, the Second Circuit held that his refusal to later falsify that report was protected speech because it addressed a matter of public concern (police brutality) and that refusal had a citizen analogue.

What made Jackler potentially certworthy was that the D.C. Court of Appeals in 2011 issued Bowie v. Maddox, which involved a public employee who claimed retaliation after he wanted to submit an affidavit in response to a subordinate's EEOC charge (he refused to sign the affidavit prepared for him by his office, the Office of Inspector General). The D.C. Circuit rejected Bowie's claim at 642 F.3d 1122 (D.C. Cir. 2011), but on Bowie's motion for reargument, the D.C. Circuit addressed Jackler for the first time, at 653 F.3d 45 (D.C. Cir. 2011), and stated that Jackler was wrongly decided and that the Second Circuit had misapplied Garcetti. Hence the cert petitions in both Jackler and Bowie. The law firm of Bergstein & Ullrich, LLP, with assistance from Dupee & Monroe, P.C., filed the op-cert brief in Jackler with the Supreme Court last November.

Some Supreme Court watchers thought the Court might grant certiorari in Jackler/Bowie, since Bowie criticizes Jackler and everyone knows that the Court takes cases to iron inter-Circuit conflicts. It was not to be. Everyone also knows that the Court is selective in hearing cases. The Supreme Court denied certiorari in both cases, and the Jackler decision stands.

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