Supreme Court refuses to hear police officer’s freedom of petition case

Friday, October 9, 1998

The U.S. Supreme Court refused this week to hear a case that could have settled the question of whether public employees are entitled to greater protection under the First Amendment's petition clause than under the free-speech clause in certain circumstances.

Melvin Grigley, a sergeant with the Atlanta police department, sued the city and various officials, including the police chief, claiming he was retaliated against for refusing to drop criminal charges against a female police officer. Grigley and the female officer had a physical altercation at his home.

In Grigley v. City of Atlanta (97-1955), Grigley contended his First Amendment free-speech rights were violated because he was subjected to disciplinary action for testifying against the female officer.

He also alleged that his First Amendment freedom of petition rights were violated because he faced discipline for going to court to pursue a redress of grievances against the other officer.

In February 1997, a federal district court dismissed Grigley's free-speech claim, ruling that his speech was a private matter not of “public concern.”

Public employees who claim retaliation in violation of their First Amendment free-speech rights must show that their speech was of public concern.

The district court also rejected his freedom of petition claim on the same basis — that Grigley's speech was not on a matter of public concern.

In the 1984 case Connick v. Myers, the U.S. Supreme Court imposed the “public concern” requirement on public employee free-speech claims, writing: “When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.”

Since the Connick decision, several lower federal courts have imposed this same “public concern” requirement to public employee's free-petition claims. The U.S. Courts of Appeal for the 2nd, 5th, 6th, 7th, 8th, 9th and 10th circuits have all ruled that public employee freedom of petition claims relate to a matter of public concern.

Grigley appealed his case to the 11th Circuit, contending the public-concern requirement did not apply to claims based on the freedom to petition the government for a redress of grievances. His attorneys relied on a 1994 decision by the 3rd Circuit in San Filippo v. Bongiovanni.

Bongiovanni involved the claims of a professor who alleged that he was fired in part for grievances and a libel lawsuit that he had filed against university officials.

In Bongiovanni, the 3rd Circuit wrote that “the mere act of filing a non-sham petition is not a constitutionally permissible ground for discharge of a public employee.”

“The petition clause of the First Amendment was not intended to be a dead letter — or a graceful but redundant appendage of the clauses guaranteeing freedom of speech and press,” ruled the 3rd Circuit.

However, on appeal in the Grigley case, the 11th Circuit was not persuaded by the reasoning of the 3rd Circuit in Bongiovanni. The 11th Circuit also noted that the facts of the Bongiovanni case were much different than the facts in Grigley's case. In Bongiovanni, the university professor had followed a formal grievance process against his employer.

The 11th Circuit affirmed the lower court's dismissal of Grigley, writing that “the Petition Clause is not entitled to any greater protection than the Free Speech Clause.”

The 11th Circuit quoted from the 1985 U.S. Supreme Court decision, McDonald v. Smith: “The Petition Clause … was inspired by the same ideals of liberty and democracy that gave us the freedoms to speak, publish, and assemble. These First Amendment rights are inseparable, and there is no sound basis for granting greater constitutional protection to statements made in a petition … than other First Amendment expressions.”

Grigley's attorneys then filed a petition asking the U.S. Supreme Court to review the 11th Circuit's ruling. They argued that the high court should take the case to settle the difference between the 3rd Circuit's ruling and the rulings of the other federal circuits.

The U.S. Supreme Court will sometimes take a case to resolve a split among the lower federal courts. However, Mary Huber, an attorney for the city of Atlanta, wrote in the city's response to Grigley's Supreme Court petition: “Grigley was not attempting to fix a problem created by the City of Atlanta, but was pursuing a personal grievance against his co-worker in an unrelated forum. The facts presented by Grigley do not provide an opportunity to resolve the conflict between the 11th Circuit's decision in this case and the Third Circuit's decision in San Filippo.”

David Ates, one of Grigley's attorneys, said: “We are disappointed, but not terribly surprised by the U.S. Supreme Court's decision not to review this case.”

Ates said that public employees should not be subjected to the public-concern requirement when filing freedom of petition claims. “It is a different clause with a different background and different purpose.

“In this case we argued that Mr. Grigley's petition rights were infringed upon because he was retaliated against after he sought access to the courts to pursue a redress of grievances,” Ates said.

However, Huber took a different view.

“This was simply not a constitutional case,” she said. “Grigley never filed a formal grievance or claim; this case was out of the realm of the 3rd Circuit case.

“Really, this was a goofball case,” she said. “This case shows that bad facts make bad law for plaintiffs.”