Law enforcement quotas are a travesty, and the NYPD officer who spoke out against them to a superior was speaking as a citizen rather than as an officer, and thus was protected by the First Amendment guarantee of the right to free speech. So said the federal Second Circuit Court of Appeals last week in Matthews v. New York, No. 13-2915-cv. The case, brought by the NYCLU, alleged that the New York Police Department retaliated against officer Matthews for his exercise of his First Amendment right to free speech when he spoke out to his precinct commanders against quotas. Matthews, a 17-year veteran police officer, claimed that the retaliation included punitive assignments, denial of overtime and leave, separation from his longtime partner, poor evaluations, and constant harassment and threats. The appellate decision reversed the trial judge, who ordered the case dismissed on the grounds that the Officer's speech was not protected under the 1st Amendment because of his status as a public employee. In the last week's appellate decision, the appellate panel ruled that because Matthews's reporting of precinct policy did not fall within his official duties and because he elected a channel with a civilian analogue to pursue his complaint, he spoke as a citizen rather than an unprotected public employee.
A plaintiff who sues alleging retaliation for first amendment protected speech must establish that the speech was protected and that adverse action was taken against him by the defendant because of the speech. A court conducts a two‐step inquiry to determine whether a public employee's speech is protected: “The first requires determining whether the employee spoke as a citizen on a matter of public concern." Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). To answer that question, a court then looks at whether the subject of the speech was a matter of public concern, and then whether the employee spoke out as a citizen rather than as an employee. If both of those questions are answered "yes" the court then engages in what is known as Pickering analysis to determine "whether the relevant government entity “had an adequate justification for treating the employee differently from any other member of the public based on the government's needs as an employer.”
This case turned on whether Officer Matthews spoke out about the quotas as a citizen or as an employee. Disagreeing with the trial court, the Court of Appeals ruled that Mr. Matthews spoke as a citizen, because neither his job description nor the every day realities of his work as a police officer included providing feedback regarding precinct-wide policies. The court remanded back to the district court for Pickering determination of whether the alleged retaliatory treatment was adequately justified based on his status as an employee of the precinct, and whether a reasonable jury could find that Matthews suffered retaliation as the result of exercising his First Amendment rights.
This is an important case for a couple reasons: First, police officers who expose department misconduct should be rewarded, not persecuted. Quotas for law enforcement officer arrests are a categorically bad idea, and have been documented to lead to false arrests and planted evidence. In this case, Officer Matthews repeatedly reported his precinct's quota policy to a commanding officers, and the Court of Appeals basically affirmed his right to do so without fear of unfettered retaliation. The second, more important reason this case has potential importance is that it narrows the category of speech that is not protected.
Appeals court analyzed Officer Matthews's actual job duties and held that he was speaking as a citizen because his job as a police officer does not include policy discussions with management, rejecting the trial court's ruling that he was speaking as an employee because every NYPD officer has a stated duty to report "misconduct." Narrowing the citizen/employee distinction is a positive step toward greater rights of expression for public employees, and ultimately should serve the public good.
Public employee free speech protections are tricky, because courts have long acknowledged a tension between the worker's First Amendment rights and the common-sense acknowledgement that "goverment offices could not function if every employment decision because a constitutional matter." Public employees should be aware of the limitations in the content and method of communicating regarding matters that might be related to their employment, and should consult an attorney prior to speaking out. The Raleigh employment attorneys at Edelstein & Payne are available for consultations with public employees who are contemplating speaking out in a way that might upset the boss, and experienced in successfully representing public employees disciplined for exercising first amendment rights. For more information regarding free speech protections for North Carolina public employees, Edelstein & Payne has made available a free guide created by firm attorneys for a "know your rights" seminar in 2014. The document can be found on our "resources" page..