2d Circuit issues a rare victory for public employee whistleblowers

Ever since the Supreme Court in 2006 revised the legal standards governing when public employees engage in First Amendment speech, plaintiffs have had a difficult time winning their cases, as courts usually find that the plaintiff did not speak as a citizen but as an employee spoke out pursuant to his official job duties. We call this the Garcetti rule. In this case, the Second Circuit, finds for the plaintiff, a police officer who was retaliated against for speaking on matters of public concern in his capacity as a union representative.

The case is Montero v. City of Yonkers, decided on May 16. As vice president of the union, Montero criticized the police commissioner's decision to discontinue several police units  -- including those dealing with domestic violence and burglary and one dedicated to the Police Athletic League -- that would adversely affect the police department and the community. After plaintiff suffered retaliation for this speech, he brought this lawsuit, which the district court dismissed on Garcetti grounds. The Second Circuit rejects the district court analysis and finds plaintiff engaged in in protected speech, but plaintiff still loses most of the case on appeal on qualified immunity grounds.

The Second Circuit made these cases much harder to win in 2010, when it held in the Weintraub decision that a public employee's speech is unprotected under the First Amendment if it is part and parcel of his ability to perform his job duties. That is a broad net that has swept up many-a-case over the years. Another question that factors into the analysis is whether the plaintiff's speech had a civilian analogue; if the answer is yes, the speech is more likely to be protected.

The Court (Sack, Hall and Katzmann) notes "there may be some confusion as to whether" the issues of "whether (1) the speech was outside the speaker's official responsibilities and (2) there was a civilian analogue -- must be answered in the affirmative for the speech to be protected under Garcetti." But the Court settles that issue in this case. "Although the presence or lack of a civilian analogue may be of some help in determining whether one spoke as a citizen, 'the critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee's duties.'"

We have three primary holdings here, at least as to the free speech issue. First, since plaintiff's speech as a union official was not "part and parcel of his concerns about his ability to properly execute his duties" as he spoke "as union vice president, a role in which he was not required to serve," his remarks "did not fall within his employment responsibilities." The court does not, however, categorically hold that all speech in your capacity as a union member constitutes speech as a private citizen. Since "his union speech was not composed of statements made as a 'means to fulfill' or 'undertaken in the course of performing' his responsibilities as a police officer," he spoke as a citizen. Second, plaintiff spoke on a matter of public concern because his union remarks opposed the commissioner's personnel cuts and plaintiff called for a no-confidence vote with respect to the commissioner. Speech about the terminate of police units that would endanger public safety constitutes speech on a matter of public concern.

So far, so good for plaintiff (and other municipal speakers), but the analysis does not end there. Most of the defendants are entitled to qualified immunity, which lets public defendants off the hook in damages claims when the law was not clearly-established at the time of the violation. The Court of Appeals says the state of the case law at the time of the retaliation was too murky to put defendants on notice that they were violating the First Amendment. One defendant does not get qualified immunity, at least, for now, because he has not asked for it yet. He probably will on remand. For plaintiff, this is a pyrrhic victory: he improves the state of law for other plaintiffs, but he cannot prevail in this case because of qualified immunity.