First Amendment does not protect police officer's protest against arrest quotas

The golden age of the government whistleblower is long behind us. In this case, the Southern District of New York holds that a New York City police officer has no right under the First Amendment to complain about illegal arrest quotas.

The case is Matthews v. City of New York, 2013 U.S. Dist. LEXIS 105940, decided by Judge Engelmayer on July 29. Matthews came to believe that the police were adhering to a quota system, in violation of their core mission. After complaining internally about the arrest quotas, he suffered retaliation. He sues under the First Amendment. To win the case, Matthews has to get around the Supreme Court's 5-4 ruling in Garcetti v. Ceballos, which says that the First Amendment does not protect speech that arises from the employee's job duties. In plain English, if the speech is work-related, he is a sitting duck, at least under the First Amendment.

The issue here is whether Matthews spoke pursuant to his job duties. Judge Engelmayer provides a treatise on post-Garcetti Second Circuit case law, particularly with respect to police officers who spoke out on matters of public concern. For plaintiffs, the doctrinal landscape isn't pretty. Plaintiffs are losing left and right. The only Second Circuit case since 2006 that favors the plaintiff is Jackler v. Byrne, which the Court of Appeals resolved in 2011, holding that a police officer who refused to alter a truthful report about police misconduct could not be terminated in retaliation for that speech. (I argued Jackler). Jackler bears some similarities to Matthews's case, but Judge Engelmayer says their commonalities are superficial "in that they both involve a police officer reporting police misconduct." "The Second Circuit in Jackler pointedly described the protected speech as the refusal to retract the truthful report and file a false one. The Court did not address whether, let along hold that, Jackler's original, truthful report would have constituted protected speech had he been retaliated against on that basis."

Left without a precedent to hang onto, Matthews argues that his quota protest was not pursuant to official job duties. The district court disagrees and dismisses the case on summary judgment. For instance, the Patrol Guide requires officers to report the fact of "unjustified stops, arrests and summonses." Matthews's speech also concerned the subject matter of his employment, and owed its existence to that employment. He also spoke out internally, and the speech does not carry any civilian analogue. As Judge Engelmayer, your average citizen could not spoken out the way that Matthews did. So, while the district court acknowledges that plaintiff's speech "had undeniable value to the public," he cannot proceed on his First Amendment retaliation claim.