Qualified immunity strikes down another speech case

This case once again acquaints us with qualified immunity and how it can scuttle a civil rights lawsuit if the plaintiff's rights were violated in a way that was not readily apparent to the defendants at the time of the rights violation.

The case is Colvin v. Keen, decided on August 15, a case I overlooked when it first came down but discovered when I was researching qualified immunity in another case. Plaintiff worked for SUNY Farmingdale as an admissions counselor. She gave advice to a co-worker who was being arrested by campus police. The co-worker, Buch, was accused of trespassing on campus. This all happened after yoga class. Colvin told the police she was an attorney and she told Buch "to wait to say anything until we got an attorney and a union rep." Colvin also told the police she wanted to accompany Buch to the police station. Plaintiff's employment was then terminated.

Plaintiff says her First Amendment rights were violated because her speech to the police in connection with their interaction with Buch was protected. Generally, public employees cannot be fired in retaliation for protected speech. In the public employment context, protected speech addresses anything relating to a matter of public concern to the community. As Section 1983 lawyers know, public employees also have to show they spoke as a citizen and not as part of their job duties. That so-called Garcetti standard often kills off free speech cases, but plaintiff's case is dismissed for another reason: it was not clear at the time of plaintiff's termination that her speech was protected by the First Amendment.

The case law is not clear enough to help plaintiff. In other words, cases with a similar set of facts have not been resolved in the Second Circuit. Here is how the Court of Appeals sees it:

The precedents do not show a “clearly established” law favoring Colvin on this question. This court has found, on the one hand, that speech debating issues of discrimination, speech seeking relief from “pervasive or systemic misconduct” by public officials, and speech that is “part of an overall effort to correct allegedly unlawful practices or bring them to public attention” all go to matters of public concern. Golodner v. Berliner, 770 F.3d 196, 203 (2d Cir. 2014). By contrast, we have found speech that “concerns essentially personal grievances” does not qualify as speech on a matter of public concern. We have also reasoned that speech is not on a matter of public concern where it has “no practical significance to the general public.” Examples include speech alleging that a public school employee forged a signature on a teaching observation, survey questions about coworkers’ office morale, speech concerning the speaker’s own work assignments or salary, and speech accusing a supervisor of favoritism. (Citations omitted).

It is true that, under certain circumstances, we have found speech to be on a matter of public concern where it sought to “vindicate . . . constitutional rights . . . in the face of alleged police misconduct.” But in that case, Golodner, the speech related to polices and practices of police misconduct that "raised serious constitutional concerns." Unlike Golodner, the plaintiff in this case did not speak to police misconduct at all. She merely identified herself as a lawyer, "told her co-worker and the police officers that she wanted to get her co-worker an attorney and union representative, and advised her friend not to say anything until such representatives arrived. Colvin said nothing to indicate that Ms. Buch’s arrest was constitutionally improper." In other words, even if Golodner comes closest to plaintiff's case, it is not close enough, and defendants were not on notice they were violating plaintiff's rights when they fired her. Since it is otherwise legal to fire someone even for bad reasons so long they do not violate any specific constitutional or statutory command, the case is over.