Cop who opposed arrest quotas loses First Amendment claim

Friday, April 20, 2012

A New York City police officer who alleged that superiors retaliated against after he complained about a system of quotas for arrests has no valid First Amendment claim, a federal district judge has ruled.

Officer Chris Matthews, a 14-year veteran of the department who has been with the 42nd Precinct since 1999, criticized arrest quotas several times. He said the quotas violated “the NYPD’s core mission and his own commitment as a police officer to protect and serve the public at large,” according to court papers.

Matthews said he voiced his displeasure about the system, in place since 2008, to several commanding officers. Matthews also complained several times in 2009, and again in 2011 to Deputy Inspector Jon Bloch.

Matthews sued in federal court in February 2012, contending that after his complaints, superior officers responded with a fusillade of retaliatory actions, including punitive assignments, such as more foot patrols; denial of overtime, separation from his partner, verbal abuse and negative performance evaluations. In his complaint, Matthews said that Lt. Mark Sedran told him at a roll-call meeting: “If you come after me, I will come back after you harder” — apparently in response to Matthews’ complaints.

The defendants — the City of New York, Police Commissioner Ray Kelly, Bloch and Sedran — filed a motion to dismiss. On April 12, U.S. District Judge Barbara S. Jones for the Southern District of New York granted the defendants’ motion in Matthews v. City of New York.

Jones based her dismissal on the Supreme Court’s ruling in Garcetti v. Ceballos (2006), in which the Court said that when public employees make statements in line with their official job duties, they have no free-speech protections.

Jones reasoned that Matthews’ complaints to his bosses “are consistent with his core duties as a police officer, to legally and ethically search, arrest, issue summonses, and — in general — police.”

Matthews had argued that a 2011 decision by the 2nd U.S. Circuit Court of Appeals, Jackler v. Byrne, supported his claim. In Jackler, the 2nd Circuit reinstated the First Amendment retaliation lawsuit of a police officer who alleged that he was fired for refusing to retract a report of excessive force by another officer. The 2nd Circuit panel said Garcetti did not completely eliminate public employees’ free-speech rights; it retained protection for employee speech that had a clear analogy or connection to citizen speech — a ‘citizen analogue,’ as it’s known.

Matthews contended that there was a “citizen analogue” to his speech — citizen complaints about profiling and unfair arrests, including comments at police community forums. Judge Jones disagreed with this argument and wrote that Jackler did not stand for the principle “that a civilian analogue is sufficient to establish a First Amendment right.”

“It is not, as Matthews contends, that the presence of a civilian analogue necessarily confers First Amendment protection, but rather the reverse — when a public employee engages in citizen speech, it is unavoidable that there will be some civilian analogue to his speech,” Jones wrote.

According to Jones, if a public employee like Matthews speaks in connection with official job duties, there is no “civilian analogue.”

Christopher Dunn, associate legal director with the New York Civil Liberties Union and the attorney who represented Matthews, told the First Amendment Center Online that the decision would be appealed.

“Garcetti is a bad decision for public employees but this ruling goes far beyond Garcetti and we don’t think it will survive beyond appeal,” he said.

William Fraenkel, an attorney for the city, said in a statement: “The judge made a well-reasoned decision, and we are pleased the court dismissed the lawsuit.”

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