Garcetti's Dubious Legacy

The US Supreme Court's ruling in Garcetti v. Ceballos that speech uttered in the course and scope of public employment enjoys no constitutional protection, while perhaps unsatisfying in itself, has spawned new problems.  An example is the Second Circuit's decision in Jackler v. Byrne.  Jackler was a probationary police officer in the Middletown, New York police department.  He witnessed a fellow officer strike a handcuffed prisoner in the face after the prisoner referred to the officer by a vulgarity.  When the prisoner filed a civilian complaint that identified Jackler as a witness to the attack, Jackler was asked to provide a report.  He did so, corroborating the prisoner's charge.  Then Jackler's supervisors demanded that he change the report to deny the alleged attack. Jackler refused and was discharged.  He brought suit under 42 USC 1983 for this retaliation and the district court dismissed the complaint, relying on Garcetti and a Second Circuit case applying Garcetti, Weintraub v. Board of Education, 593 F.3d 196 (2010).  The Second Circuit reversed, reasoning that there was a "civilian analogue" to Jackler's refusal to file a false report, namely the obligation to refrain from making false statements to public officials.  Thus, Jackler's refusal was treated as a civilian refusal to speak falsely on matters of public concern. 

The result is correct, in my opinion.  Jackler's first report was surely in the course and scope of his employment, but his refusal to lie is a bit more complicated.  His employers demanded the lie as part of his job; he refused.  But his refusal was consistent with his obligations as a citizen and was surely directly connected to a matter of public concern.  But consider the likely outcome if Jackler's supervisors had not asked him to lie, but simply fired him when he submitted his report.  Because the report was made in the course and scope of his employment as a police officer, there would be no constitutional protection afforded Jackler.  Does that make much sense?  If not, one wonders about Garcetti.

Comments

[Larry Rosenthal]

I do not mean to quarrel with the holding in Jackler -- perhaps it is correct that when acting in the capacity of a "witness" a police officer is not engaged in duty-related speech within the meaning of Garcetti. In Garcetti itself, the Court seemed to take it as given that Ceballos's testimony in the underlying criminal case was eligible for First Amendment protection. But, putting that aside, can it possibly be the case that every time a police officer is disciplined for filing a false report the officer is entitled to have a jury decide whether the police department's assessment of the report's veracity was correct? If not, maybe there is something to Garcetti's decision to leave these matters to managerial prerogative.

Larry Rosenthal
Chapman University School of Law