A police officer's report to the police department's internal affairs bureau is protected by the First Amendment a federal district court in New York has ruled in Griffin v City of New York, No. 10-CV-2592 (EDNY, July 31, 2012). This is an important ruling that correctly recognizes the limits of the Supreme Court's misguided decision in Garcetti v Ceballos, 547 U.S. 210 (2006).
The Supreme Court ruled in Garcetti that the First Amendment offers no protection for public employees when they make statements pursuant to or commanded by their official duties. Garcetti has led to numerous bad results such as Vose v. Kliment, 506 F3d 565 (7th Cir 2007), where a narcotics supervisor's report of corruption in his unit was ruled not protected by the First Amendment, and Sigsworth v. City of Aurora, Illinois, 487 F3d 506 (7th Cir 2007), where the court ruled that a task force investigator's reports that targets of the task force were being tipped off by some of its members were not protected by the First Amendment. Garcetti and these decisions suggest that public employees would be well-advised to report wrongdoing in their departments or units to authorities removed, something that in the context of police work may not be possible.
The plaintiff in Griffin was a 26-year police detective who reported to internal affairs the attempts of another detective to coerce him into accepting blame for a botched homicide investigation. The city claimed that this report was part of the detective's duties and under the Garcetti rule he was not entitled to any First Amendment protection.
The district court per Judge Raymond Dearie ruled that the Garcetti rule did not apply for the following reasons:
- Garcetti recognized that there could be cases where it was debatable whether a report was required by a public employee's duties
- where no clear "official duty" to speak is present, the focus must be on the "subject, manner and context of the speech to determine whether it relates to topics that are 'indispensable prerequisites to effective' performance of the speaker's 'primary employment responsibility"
- the city's police manual directing that police officers have an absolute duty to report misconduct in the police department to internal affairs did not preclude First Amendment protection because (1) Garcetti rejected the notion that employers can restrict employees' free speech rights through excessively broad statements of policy or job descriptions; and, (2) reporting internal misconduct to internal affairs was neither encouraged nor rewarded, a reality that undermined the city's position
- the plaintiff's job was to "police the public, not other police officers" and reporting internal misconduct was not part-and-parcel of the performance of his official duties
- plaintiff's report to internal affairs was not within his chain of command, especially since any member of the public could make a report to internal affairs
This is a thoughtful and well-reasoned decision by a district judge, who acknowledges that "some applications of Garcetti may be troublesome." Indeed, Garcetti can yield some decisions that are very much counter to the public interest.
Another First Amendment law enforcement case was discussed in a recent post: Deputies' Report of Sheriff's Eavesdropping Addressed Matter of Public Concern and Was Protected by First Amendment.