Internal Police Department Tip About Location Of Suspect Not Constitutionally Protected

The tenure of Arthur Jones as the Police Chief of Milwaukee, Wisconsin produced one of the greatest number of law enforcement labor lawsuits of any jurisdiction in the county. Though Jones is no longer chief, the lawsuits against him continue to percolate through the courts.

A recent case involved George Schad, a police officer who is a member of the Warrant Squad of the Department. The Warrant Squad, which is responsible for locating and arresting people wanted on outstanding warrants, is a desirable assignment for which officers are specifically selected.

In 2001, the Department’s Tactical Enforcement Unit was in a 24-hour standoff with a suspect named Lesmes Rivera. Members of the Unit succeeded in arresting Rivera only after using tear gas to draw him out of the house in which he had barricaded himself. The same month, Rivera posted bail and was released.

The day of Rivera’s release, at the Warrant Squad roll call, Schad and the other Squad members were instructed to locate and arrest Rivera. A lieutenant asked Schad to check an address located in Milwaukee’s District 2. Schad responded that neither he nor any of the other Warrant Squad officers on duty were available to follow up on the tip. The call ended with the lieutenant saying “we have to get somebody out there,” or something to that effect.

Following the lieutenant’s call, another Warrant Squad officer suggested that Schad call Officer Matthew Knight, who was assigned to District 2 and who was familiar with the Rivera case. Schad did so, and Knight, after receiving permission from his sergeant, went with his partner to the address provided by Schad. Upon entering the building at that address, Knight found Rivera in the hallway and told him that he was under arrest. When Rivera reached for a pistol in his waistband, Knight knocked it away and a “major struggle” ensued. Rivera eventually was subdued and taken into custody.

Chief Jones responded by transferring Schad back to a street assignment. The Chief stated that the transfer was because Schad had breached the Department’s confidentiality rule by disclosing Rivera’s whereabouts to someone outside of the Warrant Squad. Schad believed that the real reason for the transfer was that Chief Jones had wanted the Tactical Enforcement Unit to make the arrest to be able to make up for the Unit’s earlier standoff with Rivera, a standoff that Jones believed made him look bad.

When Schad was transferred, he filed a lawsuit in federal court, claiming that the transfer was in response to his speech – the phone call to Knight – that was protected under the First Amendment to the Constitution. When a trial court agreed with Schad, the City appealed.

A federal appeals court sided with the City. The Court held that a key factor in assessing free speech lawsuits brought by police officers was whether the individual spoke “as a citizen upon matters of public concern” as opposed to purely internal departmental matters. The Court noted that “not all speech by police department employees is on matters of public concern” even though “police protection and public safety are generally a matter of public concern.”

The Court found that “the content of Schad’s speech was the tip about Rivera’s possible location, the type of information typically transmitted between officers in a police department. Schad did not seek to inform the public that the police department was not discharging its governmental responsibilities in the arrest of wanted individuals. He did not bring to light actual or potential wrongdoing, nor did he set out to remedy the flawed functioning of the department by reporting needed changes to a superior. Nothing in Schad’s speech could have alerted Knight, or anyone else, that a matter of public concern was being raised.”

The Court acknowledged that “although the public is generally concerned with the safe arrest of dangerous suspects, the focus of Schad’s call to Knight was not the evaluation of the Department’s performance in accomplishing this task. Schad let the matter rest after his routine call to Knight, suggesting that his speech was an ordinary part of the internal operation of the Police Department, and indicating that he did not speak as a citizen addressing a matter of public concern.”

Schad v. Jones, 2005 WL 1653771 (7th Cir. 2005).

This article appears in the November 2005 issue