First Amendment protects NYC police officer who spoke out against quotas

The Court of Appeals has ruled that the First Amendment prohibits the City of New York from retaliating against a police officer who spoke out against a precinct-wide quota policy. This is a rare victory under the First Amendment for public employees who speak out on matters of public concern.

The case is Matthews v. City of New York, decided on February 26. Matthews alleged that his precinct in The Bronx had implemented a quota system mandating the number of arrests, summons and stop and frisks that police officers must conduct. After complaining about this to superior officers, plaintiff suffered retaliation.

Straightforward facts, but the law in this area is complicated under the Supreme Court's Garcetti precedent (2006), which says the First Amendment does not protect speech made in the course of the plaintiff's official job duties. Under Second Circuit authority, Garcetti cases are dismissed if the plaintiff's speech was part-and-parcel of his ability to effectively perform his job. In other words, to have a case, the plaintiff has to speak as a citizen, not as a public employee. As most speech retaliation cases involve job-related speech, this legal standard kills off most First Amendment retaliation cases, making Matthews just the second published Second Circuit opinion in favor of a Garcetti plaintiff. The last one was in 2011.

Summary judgment is reversed in Matthews because the jury may find that he did not speak pursuant to his job duties. He was not employed to speak out on the quota policy. Nor was this speech "part and parcel of his regular job." Rather, "Matthews's speech addressed a precinct-wide policy. Such policy-oriented speech was neither part of his job description nor part of the practical reality of his everyday work." None of the duties in Matthews's job description involve "provid[ing] feedback on precinct policy or any other policy-related duty." He also did not set policy and was not expected to speak on (and was not consulted about) policy matters. The Court of Appeals (Walker, Hall and Murtha [D.J.]) concludes,

We hold that when a public employee whose duties do not involve formulating, implementing, or providing feedback on a policy that implicates a matter of public concern engages in speech concerning that policy, and does so in a manner in which ordinary citizens would be expected to engage, he or she speaks as a citizen, not as a public employee.

Matthews also wins the appeal because his speech had a civilian analogue, that is, it was made through "channels available to citizens generally." In speaking out to his commanders, "Matthews chose a path that was available to ordinary citizens who are regularly provided the opportunity to raise issues with the Precinct commanders." While the public does not get to communicate with commanders as frequently as Matthews can, that does not mean he did not speak through a civilian analogue. "If courts were to confine their focus to the degree of access, then internal public employee speech on matters of public concern not made as part of regular job duties would be unlikely to receive First Amendment protection because, presumably, employees always have better access to senior supervisors within their place of employment."

What does this decision mean for public employee speech cases? Does it allow more plaintiffs to survive summary judgment and proceed to trial? My guess is that it does not. An argument can be made that the Supreme Court's recent decision, Lane v. Franks (2014) loosened the standards governing Garcetti claims, making it easier for plaintiffs to win their cases. But the Matthews Court cites Lane in passing, and the pre-Lane standard in the Second Circuit -- that speech is not protected if it is part-and-parcel of the plaintiff's ability to perform his duties -- is alive and well and expressly relied upon in this ruling. That is a broad net through which First Amendment cases have been snagged. Consider the narrow holding here: Matthews spoke out on overall policy. The Court of Appeals emphasizes that he "was not reporting suspected violations of law that might have required him to exercise his authority to to arrest a fellow police officer or turn in an officer for breach of protocol," duties set forth in his job description. Bear in mind, also, that the two published cases in favor of Garcetti plaintiffs, Matthews and Jackler v. Byrne (a case I argued), involved police officers speaking out against indefensible abuses. Matthews spoke up against quotas; no one likes quotas. Jackler refused to alter a police report that implicated a Sergeant's police brutality.