Police Officer’s Testimony Before Grand Jury Not Protected By First Amendment

Earlier in 2006, in a case called Garcetti v. Ceballos, 126 S.Ct. 1951, the United States Supreme Court significantly reduced free speech protections given to public employees. In Garcetti, the Court held that when public employees make statements pursuant to their official duties, they are not speaking as “citizens” for purposes of the First Amendment, and that the Constitution does not prohibit an employer from retaliating against the employee because of the speech.

Perhaps the furthest reaches of the Garcetti decision were explored in a recent case involving Miami Police Officer Jose Deprado. In May 2001, Deprado testified before a grand jury regarding the planting of evidence by SWAT team members in a shooting incident. Soon after, in June 2001, Deprado and two other officers engaged in a practical joke whereby the two officers escorted a recruit to the police gym where Deprado was doing pull-ups nude from the waist down. As a result, Deprado and the two officers were issued reprimands and ordered to forfeit ten hours of accumulated leave time. Deprado was also transferred out of the training unit to the patrol division.

Deprado filed a lawsuit, alleging that his transfer was in retaliation for his truthful testimony before the grand jury. Citing Ceballos, a federal court dismissed Deprado’s lawsuit.

The Court’s treatment of the issue was brief: “In accordance with the Police Department’s regulations, and Deprado’s obligations as a state-certified law enforcement officer, Deprado’s subpoenaed grand jury testimony occurred pursuant to his official duties as a police officer for the City of Miami Police Department, and was not speech as a private citizen. Accordingly, Deprado cannot meet the burden for establishing a First Amendment claim.”

Deprado v. City of Miami, 446 F.Supp.2d 1344 (S.D.Fla. 2006).

This article appears in the December 2006 issue