Monday, July 25, 2011
Overcoming Garcetti v. Ceballos has become a challenge for any public employee seeking to assert her or his First Amendment rights. A school teacher's assignment may be grounds for her termination, as the Sixth Circuit held.
But what about a police officer who refuses to change his statement regarding what he witnessed: another police officer striking a handcuffed man?
The Second Circuit, in its opinion in Jackler v. Bryne, decided that Garcetti v. Ceballos does not apply, reversing the district judge. Thus, Jackler, once a probationary police officer in Middletown, New York, may proceed with his suit claiming his termination was in retaliation for his exercise of his First Amendment rights.
The panel noted that most of the precedent concerns government employees who complained that they were penalized by their employers on account of statements the employees affirmatively made. "Jackler, in contrast, contends that he was penalized for his refusals to follow defendants' instructions that he retract his Report and make statements that would have been untrue, and that his refusals are protected by the First Amendment."
The court distinguished Garcetti thusly:
Although defendants argue that Jackler's refusals were part of his job and that Garcetti requires affirmance because otherwise any employee who simply files a truthful report could claim that his First Amendment rights were implicated because he did not file a false one, we reject that contention because it ignores the context of Jackler's refusals. Jackler's allegation--which must be accepted as true in the context of judgment on the pleadings--was that Rickard and Freeman, as directed by Chief Byrne, repeatedly attempted to force him to withdraw the truthful report he had filed and to submit one that was false. In the context of the demands that Jackler retract his truthful statements and make statements that were false, we conclude that his refusals to accede to those demands constituted speech activity that was significantly different from the mere filing of his initial Report.
This vital distinction is supported by the consequences of Jackler's act: "retracting a truthful statement to law enforcement officials and substituting one that is false would expose the speaker-- whether he be a police officer or a civilian--to criminal liability." In other words, Jackler's non-employee interest was in the truth that would prevent his own perjury.
While the court could certainly have stopped with this analysis, supported by its citations to New York and federal law, the panel at times delved further into the facts, stating that the "use of excessive force by a police officer is a matter of serious public concern." There was, the court said, "no indication that Jackler had any personal interest" in describing the offending police officer's conduct.
Of course, as the court did not note, the prosecutor Ceballos did not have any "personal" interest in the truthfulness of the police officer's statements seeking a warrant in Garcetti v. Ceballos. And perjury by police officers obtaining a warrant is - - - or should be - - - a matter of serious public concern.
[h/t Stephen Bergstein, CUNY Law alum and attorney for Jackler]