2 cops win round 1 over talking to press

Monday, January 3, 2011

Police officers have greater First Amendment rights to speak in their capacity as union presidents or presidents of other police-related organizations than they do as employees, a federal district court in Michigan has ruled in two opinions.

The city and the police department do not have the same level of interest in controlling the speech of union officials, the judge ruled, even if those individuals are police officers.

Keith Speer, president of the Flint Police Officers’ Association, and Karl Petrich, president of the Flint branch of the African American Police League, were police officers who were suspended in summer 2008 for speaking to the news media.

In his capacity as union president, Speeer spoke to the press several times in July 2008. The previous month, David Dicks — the new acting police chief of Flint — had issued a memo that said: “No member of the department shall speak to or release any information regarding the department and/or its employees to the news media.” Speer told news outlets that the new policy and  new leadership was “almost like a dictatorship.” For this and other interviews, he received a five-day suspension.

Petrich also spoke to the press in his capacity as president of the African American Police League. He criticized the appointment of Dicks because, he said, Dicks lacked supervisory experience and had pleaded guilty to a charge of impaired driving.

“This is a slap in the face to the citizens of the city of Flint,” Petrich was quoted as saying. “As a 19-year veteran of the Flint Police Department, I have never seen things so screwed up in my entire career.”

Petrich received a two-day suspension.

Speer and Petrich filed federal lawsuits in August 2008, alleging a violation of their First Amendment rights in retaliation for protected speech against the City of Flint. Both officers contended that the city’s policy prohibiting speaking to the press was unconstitutional.

In September 2008 Dicks rescinded both suspensions and canceled the policy. Both Speer and Petrich contended in their lawsuits that after their suspensions they had curtailed their interactions with the news media.

The city argued in its defense that both officers’ suits were barred by the U.S. Supreme Court’s 2006 decision in Garcetti v. Ceballos. The Court ruled that public employees have no First Amendment rights to speech made in the course of their official job duties.

The officers countered that they were not speaking as employees but as president of the union and the other organization, respectively. On Dec. 29, 2010, U.S. District Judge Patrick J. Duggan agreed with both officers in two separate opinions: Speer v. City of Flint and Petrich v. City of Flint.

In both decisions, Duggan reasoned that the officers had spoken on matters of public importance. He also ruled that they were not speaking in relation to their official duties.

“An employer cannot expect to control the union’s speech in the same way it would control an employee’s,” Duggan wrote in Speer’s case. “The Court concludes that where Plaintiff spoke in his capacity as FPOA president, Garcetti does not bar his First Amendment claim.”

Duggan reached the same conclusion with respect to Petrich’s speech as head of his group: “The City has no interest in controlling the speech of the AAPL.”

Duggan denied the city’s motion for summary judgment in both cases. That means that the officers’ First Amendment claims can proceed to trial.

The rulings serves as a powerful indication to public employers that there are limits to Garcetti.


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