Tuesday, June 26, 2012

No speech rights for police officer who exposed official misconduct

The public whistleblower has few rights under the First Amendment these days. The Supreme Court's Garcetti decision in 2006 said that any speech arising from the employee's official job duties is not protected under the Constitution, and management is free to do whatever it wants to the employee in response to that speech. Since, then few Garcetti cases have survived in the Second Circuit. This case does not change anything.

The case is Matthews v. Blumenthal, a summary order decided on May 24. Matthews worked for the Connecticut State Police Internal Affairs unit. He was responsible for investigating police misconduct. While performing his duties, plaintiff "learned that the Connecticut State Police covered up officer misconduct, which included the commission of crimes, driving while intoxicated, and misuse of funds." After plaintiff disclosed this misconduct to the Attorney General and other public authorities, "superior officers in the Connecticut State Police, allegedly retaliated against Appellant for making these disclosures." Now, this case was dismissed under Rule 12, so no one had the opportunity for any discovery or cross-examination, but if Matthews' allegations are true, it sounds like he got a raw deal for protecting the public interest.

A raw deal perhaps, but this retaliation is legal, at least under the First Amendment. Matthews spoke out pursuant to his official job duties. As the Second Circuit (Wesley, Lohier and Droney) says, "appellant’s complaints to outside agencies were 'part and parcel' of his ability to properly execute his duties–i.e., enforce the law and effectively combat police misconduct. ... Appellant’s additional concession at oral argument that he first reported the misconduct up his chain of command further supports our  determination that he was acting pursuant to his employment duties."

Some police officers do have rights under the First Amendment to speak on certain work-related matters, but the one Second Circuit case that ruled in favor of an officer post-Garcetti arose under facts that may not arise again anytime soon: an officer's affirmative refusal to falsify an excessive force report that implicated a sergeant. These cases are otherwise being dismissed left and right, producing the ultimate anomaly: prison inmates have more First Amendment rights than the officers who arrested them.

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