In Jackler v. Byrne, 658 F.3d 225 (2011), the Second Circuit vacated the trial court’s FRCP 12(c) dismissal of plaintiff probationary police officer’s Section 1983/First Amendment retaliation claim. Plaintiff alleged that he was fired because he refused to follow instructions to retract a report that implicated a police officer in the use of excessive force against a civilian, and to file a false report.
The lower court dismissed plaintiff’s First Amendment retaliation claims because “the complaint failed to state a viable claim because the speech of a government employee on a matter of public concern is not protected by the First Amendment unless he speaks not as an employee in the course of his duties but rather as a citizen” and plaintiff’s “speech here was in his capacity as a police officer, not a citizen”.
The Second Circuit disagreed, and held that Supreme Court precedents – including Garcetti v. Ceballos, 547 U.S. 410 (2006) – did not bar a First Amendment claim in the circumstances presented. Citing Garcetti, the court held that a government employee’s speech is entitled to First Amendment protection only if s/he “spoke as a citizen on a matter of public concern”. This question, in turn, requires consideration of (1) whether the “subject of the employee’s speech was a matter of public concern” (a question of law) and (2) whether the employee “spoke ‘as a citizen’ rather than solely as an employee.”
Addressing the first portion of this inquiry, the court stated:
To constitute speech on a matter of public concern, an employee’s expression must be fairly considered as relating to any matter of political, social, or other concern to the community. … Speech that, although touching on a topic of general importance, primarily concerns an issue that is personal in nature and generally related to [the speaker’s] own situation, such as his or her assignments, promotion, or salary, does not address matters of public concern. … Government offices could not function if every employment decision became a constitutional matter. … Rather, a topic is a matter of public concern for First Amendment purposes if it is of general interest, or of legitimate news interest, or of value and concern to the public at the time of the speech. … Exposure of official misconduct, especially within the police department, is generally of great consequence to the public. … [P]olice malfeasance consisting of the use of excessive force is plainly a matter of public concern.
(Emphasis added, citations omitted.)
Furthermore, “[w]hen an employee speaks as a citizen addressing a matter of public concern, the First Amendment requires a delicate balancing of the competing interests surrounding the speech and its consequences.” This so-called “Pickering” balance – after the SCOTUS case that bears its name – is performed by the court as a matter of law. “The more the employee’s speech touches on matters of significant public concern, the greater the level of disruption to the government that must be shown.”
Next, the court discussed the authorities standing for the propossition that the First Amendment includes both the right to speak and the right not to speak – for example (as here) not to submit a false report connection with an investigation of police misconduct. Additionally, “retracting a truthful statement to law enforcement officials and substituting one that is false would expose the speaker – whether he be a police officer or a civilian – to criminal liability.”
The court had no trouble concluding that plaintiff’s refusal to change his statement and to substitute a false one was “directed at a matter of public concern, rather than an effort to further some private interest of [Plaintiff] personally.” Plaintiff’s refusal also had a “civilian analogue”: he, just like any citizen, “has a First Amendment right … to reject governmental efforts to require him to make statements he believes are false.”
Balancing plaintiff’s and the government’s respective interests, the court easily concluded that despite the government’s broad discretion (as an employer) to manage its operations, that “discretion does not include authority to coerce or intimidate its employees to engage in criminal conduct by filing reports that are false in order to conceal wrongdoing by another employee or to conceal eyewitness corroboration of civilian complaints of such wrongdoing.” Essentially, causing plaintiff’s termination in retaliation for plaintiff’s refusal to make false statements would not be seen as furthering the proper performance of governmental functions.
Finally, the court disposed of defendants’ qualified immunity defense. First, plaintiff’s right to be free from the retaliation that occurred here was “clearly established”, as shown by numerous precedents decided before plaintiff was fired. Second, defendants’ argument was largely based on a non-precedential summary order. Third, plaintiff sued defendants in their individual and official capacities, and the qualified immunity defense “is not applicable to claims against [defendants] in their official capacities”.