In Garcetti v. Ceballos the Supreme Court held that speech of a government employee on a matter of public concern is not protected by the First Amendment when they are speaking in the course of their duties as a government employee. In Byrne the Second Circuit found that rule did not apply to a claim of retaliation based on a refusal to make a false statement in a police report.
Jackler was a probationary officer with the Middletown, New York police department. While on duty he witnessed a use of force by his sergeant. As required by department policy he filed an incident report. In it he reported the sergeant as using force against a handcuffed suspect seated in the back of Jackler’s closed patrol car, apparently in retaliation for being called a name. Jackler claimed that defendants pressured him to change his report to conceal the misconduct. When that failed, they retaliated by recommending that that Jackler not be retained as a permanent police officer and that he be terminated as a probationary officer. According to Jackler, they supported their recommendation with false, incomplete, and misleading information, about Jackler’s job performance.
The District Court dismissed Jackler’s claim, finding it precluded under Garcetti. The Second Circuit reversed, finding that plaintiff was not speaking as a government employee when he resisted the pressure to change his report. Instead, according to the Second Circuit, Jackler was exercising a citizens First Amendment right to refuse to retract a truthful report to the police, to refuse to make a false statement, and to refuse to engage in unlawful conduct.
Interestingly, just a month before the Second Circuit issued its opinion, the DC Circuit published its decision in Bowie v. Maddox. Bowie claimed he was fired in retaliation for exercising his First Amendment rights when he refused to sign an allegedly false affidavit his governmental employer drafted in response to an employment discrimination claim. The DC Circuit upheld the District Courts dismissal of this claim, finding that Bowie was not speaking “as a citizen” when he refused to sign the affidavit. (Opinion here).
Bowie petitioned for rehearing the day before the Second Circuit issued its opinion in Byrne, giving the DC Circuit the opportunity to address that decision in its ruling denying rehearing. It concluded that the standard adopted by the Second Circuit in Byrne “. . . is about as useful as a mosquito net made of chicken wire . . .” (Opinion here).
In law school I was taught that bad facts make bad cases. If true, the facts alleged by plaintiff in Byrne v. Jackler are very bad. (A high level cover-up by police officials of an unconstitutional use of force). The Second Circuit was clearly bothered by these facts, as was the District Court. (The Byrne opinion notes that the District Court “ruled–reluctantly”). The problem is that “bad fact” have unintended results. In this case if defendants admitted that they retaliated against plaintiff, not for his refusal to change his report, but because of what he wrote in the report in the first place, would He still get to a jury? Even the Second Circuit would agree that termination for what he wrote in the report would not be actionable under Garcetti, otherwise they need not have split the hairs so closely. But if plaintiff still gets his day in court, doesn’t that eviscerate the holding in Garcetti. After all, what plaintiff’s counsel in their right mind would allege that the retaliation was for what their client wrote, when alleging it was for they refused to write guarantees a jury trial!
The defendants are asking the Supreme Court to review two questions:
(1) May a government employer, free of First Amendment liability, discipline an employee for his refusal to prepare a job-related report?
(2) Is there an exception to Garcetti v. Ceballos for law enforcement employees?
Hopefully the Supreme Court will accept review to resolve this clear conflict between the circuits.
UPDATE: The Supreme Court denied review of both this case and Bowie on February 27, 2012.