Friday, December 7, 2018

No retaliation claim for officer who exposed sergeant's use of police database to spy on his ex-girlfriend's new boyfriend

The Court of Appeals has held that a corrections officer who exposed a sergeant's abuse of a restricted police database to spy on his ex-girlfriend's new boyfriend can be retaliated against for his speech act because the law was not clearly-established that this kind of whistleblowing is protected under the First Amendment.

The case is Gorman v. Rensselaer County, issued on December 6. I briefed and argued this appeal. Plaintiff worked at the County Jail. The sergeant was dating plaintiff's sister, but the relationship ended when Plaintiff's brother told sis that the sergeant was cheating on her. Meanwhile, the sergeant went to the eJustice database to check up on the new boyfriend's criminal history. The eJustice maneuver violated the new boyfriend's privacy and was against the law; it cannot be used for personal reasons, only legitimate law enforcement reasons. The sergeant was prosecuted for using this restricted database, and he pleaded guilty. Plaintiff, meanwhile, was retaliated against for blowing the whistle on the sergeant.

Under settled First Amendment law, public employees cannot be retaliated against for speaking on matters of public concern, to be determined by the content, form and context of the speech. Public concern speech relates to any matter of concern to the community. At the same time, public defendants can invoke qualified immunity, which disallows the lawsuit for damages if the case law was not clearly-established at the time. While exposure of official police misconduct is "generally of great consequence to the public," the Second Circuit has also stated that "no authority supports the argument that reporting an alleged crime always implicates a matter of public concern," such as in Nagle v. Marron (2d Cir. 2011), where a teacher did not engage in protected speech when she complained that someone forged her name on an official in-school report.

The Second Circuit (Jacobs and Hall) holds that Gorman's speech was not clearly protected under the First Amendment because "there is no indication that [the sergeant] or the other defendants were engaging in an ongoing pattern of misconduct that might concern the public," and the sergeant's "isolated use of a computer program for a private purpose implicated neither public safety nor the use of taxpayer's money." Moreover, the majority holds, "the context was a volatile, intra-family feud that embroiled [the sergeant] and the Gorman siblings," and plaintiff's speech "was calculated to redress Gorman's personal grievances" against the sergeant, had no "broader public purpose" and "was score-settling, and had small practical significance to the public."

Judge Droney dissents, noting that the misuse of the computer system had "practical significance to the general public" because it accesses sensitive information that may only be used for official business and not personal activities. Misuse of the system has "substantial consequences," as the sergeant was suspended for 10 months, charged with two felonies and pleaded guilty to a misdemeanor. He adds that "any public official would have known that [the sergeant's] misuse of [the system] for private reasons would be of substantial public concern." While the majority concluded that this arose from a personal dispute among officers, "we have held that where a personal interest primarily motivated the speech, such motivation does not, on its own, vitiate the status of the speech as one of public concern."

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