Recent court decision chip away at the Garcetti decision

It takes a lot of courage and conviction for a law enforcement officer to engage in action that might adversely affect their job and career.  Most, without hesitation, will engage a subject armed with a gun or knife or jump into the middle of a fight to protect a partner.  It takes even more commitment for an officer to stand up to an agency’s failure, officer misconduct or abusive management.  In most cases s/he will encounter some form of retaliation.  Challenging retaliation at the Federal level has been severely limited in recent years…until just this year.

In 2005, the U.S. Supreme Court significantly changed the First Amendment protection for public employees in the case of Garcetti v. Caballos, 547 U.S. 410(2006).  Mr. Caballos was demoted and reassigned by his boss, Los Angeles County District Attorney Garcetti.  Caballos wrote an internal memo and talked about what he believed had been a miscarriage of justice in a case he had been handling.  He challenged his employment sanctions under the grounds that his First Amendment rights had been violated as he was speaking about a matter of public concern.  The Supreme Court ruled that the First Amendment did not protect public employees when their actions involved matters resulting from the course and scope of their employment. 

All of the Federal District Courts and Circuit Courts of Appeal have, with a few exceptions, followed this precedent and found against public employees.  This has been true even when the employee spoke out about corruption and incidents of unreasonable uses of force, were required to report by agency policies, and used proper internal chain of command procedures.

Two recent cases seem to have pecked away at the underlying issues in Garcetti.  The first case is Dahlia v. City of Burbank ,689 F.3d 1094 (9^th Cir 2102). This case involved an officer who observed and believed that other officers used unreasonable force during a robbery arrest.  His attempts to have this addressed within his agency were futile and he was immediately subjected to various forms of harassment.  He reported his concerns to the Los Angeles County Sheriff’s Office and the FBI.  When a case was initiated by those agencies, he was eventually terminated by the Burbank Police Department.  He filed a Federal claim alleging retaliation and a violation of his First Amendment rights.

The District Court dismissed his claim citing Garcetti.  The initial 3-judge panel of the 9^th Circuit upheld that decision citing also a previous case the Circuit had ruled on, Huppert v. City of Pittsburg, 574 F.3d 696 (9^th Cir. 2009).  That case involved an officer’s termination after he attempted to bring to light corruption within his department and eventually went to the FBI.  That decision and the current one involving Burbank troubled the Circuit.  The 9^th Circuit met en banc and reversed the Burbank decision in a 9-2 finding.  The Circuit’s decision was appealed to the U.S. Supreme Court, City of Burbank v. Dahlia, No. 10-55978, which denied certiori, thus making this the standard of care at least in the 9^th Circuit.

The U.S. Supreme Court in this current session further clarified its position in Garcetti with its decision in Lane v. Franks, 573 U.S. ____ (2014).  This was a case in Alabama involving a public college auditor who found that a part-time employee was being paid for work not being done.  The part-time employee was also an elected State legislator who was subsequently criminally charged.  During that criminal process, the auditor was required to relate under oath in sworn testimony what his investigation had uncovered.  He was subsequently terminated and successfully demonstrated that his employment sanction was the result of his testimony, not some budgetary decision.  His First Amendment claim was dismissed by both the District Court and the 11^th Circuit citing Garcetti and claiming that his termination resulted not from his speech as a private citizen or of an issue of public concern, but from his assigned job as a public employee.

The Supreme Court, in a 9-0 decision, reversed those findings.  The Court found that his speech was “outside the scope of his ordinary job duties” and “sworn testimony in judicial proceedings is a quintessential example of citizen speech…and is distinct and independent from any separate obligations a testifying public employee might have to his employer…the critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.”  “Here, corruption in a public program and misuse of state funds obviously involve matters of significant public concern.” 

In a concurring written opinion, Justices Thomas, Scalia and Alito also postulated another issue: “We accordingly have no occasion to address the quite different question whether a public employee speaks ‘as a citizen’ when he testifies in the course of his ordinary job responsibilities…For some public employees --- such as police officers, crime scene technicians, and laboratory analysts --- testifying is a routine and critical part of their employment duties.  Others may be called to testify in the context of particular litigation as the designated representatives of their employers.  The Court properly leaves the constitutional questions raised by these scenarios for another day.”

Garcetti, in this writer’s opinion, has created an impediment that can stifle a public employee who wants to do the right thing and stand up and be heard on matters that truly are of public concern.  Most of these involve corruption, abuse of authority and serious mismanagement.  In an agency that has these types of serious problems, the employee who steps up and does the right thing can expect management and elected officials to react against the employee and try to make his/her life unbearable.  These two decisions may be an indication that the U.S. Supreme Court is reconsidering the implications resulting from its Garcetti decision.