A police officer who claims he was punished for speaking out about an improper quota system for arrests and summonses in a Bronx precinct house turned to the U.S. Court of Appeals for the Second Circuit for a second time Thursday.
Officer Craig Matthews claimed superiors retaliated against him for reporting the quota system to a commanding officer and thereby violated his First Amendment right as a citizen to speak on a matter of serious public concern.
Matthews’ attorney, Christopher Dunn of the New York Civil Liberties Union, asked a three-judge panel to reinstate the lawsuit against New York City under 42 U.S.C. §1983.
“At issue is the very survival of First Amendment rights for tens of thousands of New York City Police Department employees…to speak out against police misconduct,” Dunn told Second Circuit Judges Peter Hall (See Profile) and John Walker (See Profile) and Judge J. Garvin Murtha of the District of Vermont.
But Assistant Corporation Counsel Marta Soja Ross told the court that a police regulation “imposes on police officers the unsurprising obligation to report misconduct or illegality.” That makes the Matthews speech just part of doing the job and leaves it without First Amendment protection.
It has been a long road for Matthews since 2009 when he went to his commanding officer at the 42nd Precinct in the Bronx and complained about quotas for arrests, summonses and stop-and-frisks.
The 16-year police veteran claims his superiors retaliated by giving him undesirable assignments such as foot patrol and prisoner transport and denied him overtime assignments and paid leave.
Southern District Judge Barbara Jones dismissed the case in 2012, finding that Matthews’ complaints were part of his duties as an officer and he was not speaking as a private citizen (NYLJ April 16, 2012)
The circuit reinstated the case and remanded, finding that the record needed more development on whether the speech was part of his job. (NYLJ, Nov. 29, 2012).
Jones left the bench, and the case was reassigned to Judge Paul Engelmayer (See Profile), who dismissed the case, setting up Thursday’s appeal.
At the heart of the appeal is the case of Garcetti v. Ceballos, 547 U.S. 410 (2006), where the U.S. Supreme Court held that speech by a public employee is not protected if it is part of the employee’s regular duties, such as the regular completion of a report.
Ross said Thursday the Engelmayer decision was narrowly tailored to the facts of the case and fit well within the “unambiguous holding” in Garcetti. “These statements were made pursuant to his official duties,” she said.
Dunn, however, stressed Garcetti made it clear that speech made through channels generally available to the public is still protected by the First Amendment.
Dunn agreed that the NYPD patrol guide requires officers to report misconduct, but here, he said, Matthews’ immediate superiors were part of the quota problem, and by going up and outside the chain of command, he brought his speech within the umbrella of First Amendment protection.
Hall and Walker appeared skeptical as to whether a leapfrog up the chain of command changed the equation.
In questioning Ross, Walker indicated the situation would be different if Matthews had “banged on the door of the New York Times” and whether he would be doing so “as a citizen” as opposed to as a police officer.
So, when questioning Dunn, Walker asked “Why isn’t raising these issues [with a commander] connected with his interest in performing his job as a policeman?”
Walker said, “I’d have no problem if he came out and spoke to the press or talked to a reporter about it,” but the “irony” is that this is “the way the law has been set up.”
“The fact that he went inside as opposed to outside is of no consequence,” Dunn responded.
Dunn said regular reporting to Matthews’ immediate superiors was not protected under Garcetti, but his complaint to the precinct’s commanding officer, who he “never had dealings with on a regular basis,” was more analogous to his role as a citizen.
And if Matthews had gone to his sergeant, or the next up the line in the chain of command, he said, then “under Garcetti, he would lose, ok, but that’s not what happened here.”
Murtha asked whether the result would be different if Matthews had made a complaint to internal affairs, Walker asked what Matthews responsibility would be if the matter concerned police corruption, like an an officer who “pockets drug money” and Hall emphasized the obligation to report a problem regardless of the person to whom it is reported.
Dunn argued that police speech cannot be restricted because of a “quintessentially broad job description,” but Hall said “he’s complaining about an illegal policy and he’s talking to somebody up the chain of command.”
“It’s workplace ethics,” Hall said. “It’s what the taxpayer would expect!”
Dunn insisted that, “for Garcetti purposes, it’s not part of his job.”
He said the city was arguing for a bright line rule: “We have this policy, it applies to everybody. He’s out.”
Walker later asked Ross whether the department could put anything in the manual that would prevent an officer from reporting anything that might be embarrassing to the department.
But Ross said Matthews admitted he had a duty to report misconduct, and that has long been department policy. NYPD Patrol Guide §207-21 imposes an “absolute duty” on officers to report “any corruption or other misconduct.”
She cited the deposition of Commissioner John Beirne, a 51-year veteran of the department as well as a lawyer.
Beirne, she said, testified that, whatever form it has taken, the duty to report misconduct has been “a core duty for decades.”