2nd Circuit ruling offers glimmer of hope in post-Garcetti world

Thursday, July 28, 2011

A recent federal appeals court decision reinstating the retaliation claim of a former police officer — who refused to retract a report he filed about a fellow officer’s use of excessive force — is a much-needed and welcome development for public employees and the First Amendment.

Jason M. Jackler, a former probationary officer in Middletown, N.Y., filed a report after he saw Sgt. Gregory Metakes strike suspect Zachary T. Jones in the face after Jones called Metakes a “dick.” Jackler had noticed that Jones, who was arrested for disorderly conduct, already had cuts on his face.

The suspect filed a citizen complaint of excessive force. In his report, Jackler confirmed Jones’ account. According to Jackler, Police Chief Matthew T. Byrne and other high-ranking officers attempted to force him to recant his report. When Jackler refused to recant or to make false statements, he lost his job. Meanwhile Metakes — the officer who reportedly used excessive force — was promoted to lieutenant. Talk about unfair!

Jackler sued in federal court, but the judge dismissed his claim because of the U.S. Supreme Court’s ruling in Garcetti v. Ceballos (2006), in which the high court ruled that public employees have no First Amendment protection for statements made in connection with their official job duties. In Garcetti, the Supreme Court created a categorical rule that if public employees speak as employees they have no First Amendment recourse in case of retaliation. Only if a public employee speaks as a citizen would he or she possibly retain free-speech protections.

The problem is that oftentimes a public employee says something that the public at large needs or would like to hear, but the speech is classified as official, job-duty speech and the whistle-blowing employee loses — is “Garcettized.”

The defendants convinced the lower court that Jackler’s refusals to retract his report were part and parcel of his official job duties, as police officers have a duty to report excessive force by fellow officers.

Fortunately, a unanimous three-judge panel of the 2nd U.S. Circuit Court of Appeals saw things much differently in its July 22 decision in Jackler v. Byrne. The 2nd Circuit quoted from another passage in the Garcetti opinion: “So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.”

The panel reasoned that the Garcetti Court did not completely eviscerate public employees’ free-speech rights if the employee speech has a clear analogy or connection to citizen speech — a “citizen analogue,” as it’s called. The panel noted that Jones, the disorderly conduct suspect, had a First Amendment right to complain about excessive force by the police. Therefore, a police officer like Jackler has a “citizen analogue” and should also have the right to make statements about excessive force and not be compelled to retract them.

“Jackler, having witnessed Metakes’ attack and Jones’s allegation, was entitled to the same constitutional protection as Jones against being forced to retract his true statement and instead make a statement that would exculpate Metakes falsely,” the panel wrote.

This finding offers hope for public employees — and particularly police officers — that they don’t lose their free-speech rights when they dress in blue, that behind the blue line there is a place for truthful officers to report excessive force and unlawful behavior by their colleagues.

Garcetti is a dangerous precedent that not only deprives public employees of valuable speech protections, but also harms the public interest by creating a strong incentive for public employees to remain silent. Let’s hope this decision by the 2nd Circuit will lead to more Garcetti exceptions until the Supreme Court sees how ill-advised that decision was.

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