Monday, June 4, 2012

First Amendment does not protect police speech against arrest quotas

The highway is strewn with discarded Garcetti cases that failed to live up to the high standards set by the Supreme Court and Second Circuit governing public employee whistleblower retaliation cases. Here's another one.

The case is Matthews v. City of New York, a Southern District of New York case decided on April 12. Under Garcetti v. Ceballos, 547 U.S. 410 (2006), public employees may be retaliated against unless their speech relates to a matter of public concern and is not pursuant to their official job duties. The "public concern" angle is easy to prove. The "official job duties" angle is a killer. Here, the plaintiff police officer complained to his superior officers about a quota system "mandating numbers of arrests, summons, and stop-and-frisks." Matthews was given punitive job assignments and bad performance evaluations in retaliation for this speech. The jury would love this guy, but Matthews will never see a jury in this case. The district court said that his speech was pursuant to his official job duties. Case dismissed.

Two cases guide the outcome: Weintraub v. Board of Education, 593 F.3d 196 (2d Cir. 2010), and Jackler v. Byrne, 658 F.3d 225 (2d Cir. 2011). Weintraub interprets Garcetti to mean that public employee speech is unprotected if it is "part and parcel" of the plaintiff's ability to do his job. Judge Jones holds, "Matthews' complaints to his supervisors are consistent with his core duties as a police officer, to legally and ethically search, arrest, issue summonses, and -- in general -- police." Although plaintiff was not required to speak up this way, that does not save his claim under Second Circuit precedent.

This is what Garcetti gets us these days. Certainly, Matthews' speech touched on a matter of public concern. The proper functioning of a police department, particularly if the department is using quotas and questionable tactics, is a matter of public interest. But the speech too closely relates to plaintiff's everyday job duties. Under Garcetti, Matthews' case is pitched aside.

Matthews argued that his case is closer to Jackler, one of the few cases that survived a Garcetti challenge in the Second Circuit. In Jackler, the Court of Appeals said that a police officer had a case when he refused to falsify a report that implicated a sergeant in police brutality, as that speech had a civilian analogue and was therefore more like citizen speech than official duty speech. But Judge Jones interprets Jackler narrowly. In Jackler, the officer's initial report that told the truth about an act of brutality that he witnessed was official duties speech; it was his refusal to later falsify that report that had a citizen analogue and was therefore protected speech, and it "was only related to his job duties," Judge Jones says. The rule in this case is that "if a public employee is speaking 'pursuant to' his duties, there is no civilian analogue to that speech."

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