No First Amendment case for EMT workers who were assaulted by police officer

Many public employee First Amendment cases these days turn on the question whether the plaintiff spoke as a citizen or as a public employee in speaking out on a matter of public concern. Citizen speech is protected. Public employee speech is not, under Garcetti v. Ceballos, the Supreme Court's 2006 ruling that made it more difficult for plaintiffs to win their cases. This case, though, turns on whether plaintiff spoke on a matter of public concern.

The case is Gordon v. City of New York, a summary order decided on May 21. Gordon and his co-plaintiff, Murawski, worked as EMT's for New York City when a City police officer assaulted them. After the reported the assault, the offending officer committed suicide, and other police officers harassed plaintiffs incessantly. The district court dismissed their case under Rule 12. The Court of Appeals (Straub, Parker and Carney) affirms.

Defendants do not dispute that plaintiffs spoke as citizens in reporting an assault by a police officer. So they survive that hurdle. But defendants challenge whether plaintiffs spoke on a matter of public concern. They did not. Even under Rule 12, where we deem all factual allegations to be true, plaintiffs did not allege anything that would concern the public at large. The Court of Appeals reasons:

Here, the complaint contains no plausible allegation that Gordon’s statement to the police was anything more than a simple, individualized assault report. As averred in the complaint, Gordon “reported to the police that Rodriguez [had] attacked [plaintiffs],” and “summoned police to assist [Murawski]” after the assault. Although the complaint includes an allegation that the FDNY “has a policy and custom of covering up workplace violence,” it fails to plead facts suggesting that the police report itself was an attempt to expose this policy. Indeed, the “content, form, and context” of Gordon’s police report—a request for help in the immediate aftermath of an attack—lead to the conclusion that the report was “personal in nature and generally related to [Gordon’s] own situation,” not an effort “to correct allegedly unlawful practices or bring them to public attention.” Huth v. Haslun, 598 F.3d 70, 74–75 (2d Cir. 2010).