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Former Brooklyn, N.Y., prosecutor Robert Reuland’s claim that he was forced from his job by Kings County District Attorney Charles Hynes for making public comments about the borough’s homicide rate has been sent back to the trial judge by the 2nd U.S. Circuit Court of Appeals. Declaring the record in the case incomplete, the appeals court refused the request of Hynes and a top lieutenant to dismiss Reuland’s claim that he was punished for exercising his First Amendment rights. Reuland alleges he was asked to resign in July 2001 after an angry Hynes demoted him from the homicide unit for comments Reuland made to a magazine writer during the promotion of his novel “Hollowpoint.” With the district attorney in the middle of a political campaign in which he claimed credit for reducing the homicide rate, Reuland told a writer for New York Magazine, “Brooklyn is the best place to be a homicide prosecutor. We’ve got more dead bodies per square inch than anyplace else.” Following his demotion from handling homicides to prosecuting petty crimes, Reuland left the office and filed suit in the Eastern District of New York, alleging that he was being punished for exercising his First Amendment rights by publishing “Hollowpoint,” a novel about a Brooklyn prosecutor; for commenting publicly to New York Magazine; and for statements he made to the district attorney in defense of his comments. The Corporation Counsel’s office, representing Hynes and First Assistant District Attorney Amy Feinstein, asked Eastern District Judge Gleeson to dismiss the suit, claiming both officials were shielded by qualified immunity and that Reuland’s comments were not protected because they did not relate to a matter of public concern. In a ruling on April 12, Gleeson found that the record was “currently insufficient” to conclude the officials could reasonably predict that Reuland’s comments would be disruptive to the office, that the potential disruptiveness of the speech was enough to “outweigh the value of Reuland’s speech,” and that the two defendants “took action against Reuland based on this potential disruption and not in retaliation.” At oral argument before the 2nd Circuit in May, the Corporation Counsel’s office argued again that the speech was not protected because it did not pertain to a matter of public concern. PLAINTIFF MUST MAKE SHOWING Second Circuit Judges Jose A. Cabranes, Rosemary S. Pooler and Robert A. Katzmann issued a summary order last month saying the plaintiff must show that the speech at issue regards a matter of public concern in order to prove retaliation for the exercise of free speech. “Upon reviewing the record, we conclude that issues of fact and law remain that preclude us from resolving this question,” the court said. “In particular, it is perhaps arguable that the novel itself pertains to a matter of ‘public concern’ and that it would have been objectively unreasonable for the defendants to have believed otherwise.” Because the lower court did not address this issue, and because “Hollowpoint” was not part of the record on appeal, the court said it was unable to resolve the issue and remanded the case. “I’m anxious for depositions to begin,” Reuland said Dec. 30. “I want to know what Hynes has to say about what he did to me.” Hynes’ office declined to return a phone call Dec. 30 seeking comment on the ruling. Drita Nicaj of Lovett & Gould represented Reuland on the appeal. Chief Assistant Corporation Counsel Leonard Koerner and Assistant Corporation Counsels Elizabeth I. Freedman and Janice Birnbaum represented the defendants.

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