Blog: Police — and us — losing big since Garcetti ruling

Tuesday, April 27, 2010

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When the U.S. Supreme Court limited the free-speech claims of public employees in Garcetti v. Ceballos (2006), it affected nearly everyone who works in the public sector. But police officers have probably borne the brunt of the Court’s new rule that the First Amendment doesn't protect official job-duty speech.

In its Garcetti holding that employees who “make statements pursuant to their official job duties” have no free-speech protection against retaliation by supervisors, the Court said it didn’t matter how important the speech might be to the public. The key question is whether it is official, job-related speech.

This ruling has crushed the claims of many police officers whose statements about corruption, cover-ups and complaints trip over the “job-duty” speech hurdle. For example, recent decisions from the 2nd and 3rd U.S. Circuit Courts of Appeals represent an all-too-common occurrence for officers of the law.

In Paola v. Spada, the 2nd Circuit ruled that a former Connecticut state trooper’s oral and written complaints about his supervisor’s alleged mismanagement and potential unlawful conduct were job-duty speech. “(Joseph) Paola’s speech was made pursuant to official duties,” the 2nd Circuit wrote in its April 16 summary order. “The record contains much evidence that state troopers must report potential wrongdoing either up the chain of command or to an Internal Affairs officer.”

Therefore, the court said, Paola could not recover damages for being demoted or for other alleged retaliatory actions.

The 3rd Circuit reached a similar conclusion in Knight v. Drye, determining that Jonathan Knight, a former Chalfont Borough, Pa., police officer, did not have a valid free-speech claim for retaliation based on his complaints about a fellow officer. Knight alleged that the borough manager, the chief of police and others punished him for complaining about the conduct of a fellow officer. The 3rd Circuit reasoned in its April 14 decision that “Knight’s complaint up the chain of command … is not speech protected by the First Amendment.”

The import of these rulings is that police may be far less willing to stick their necks out to report wrongdoing in their departments. The ultimate loser is the public.

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