A Narrow Crack In Door Opens For Protection Of On-Duty Speech
In Garcetti v. Caballos, 126 S.Ct. 1951 (2006), the Supreme Court held that speech made pursuant to an employee’s public employee official job duties is not protected by the First Amendment. Since the Garcetti decision, lower federal courts have given a broad interpretation to the opinion, and have routinely dismissed free speech claims brought by public employees who were disciplined after making statements in the course of their jobs. Perhaps the farthest reaches of the Garcetti decision were shown in Deprado v. City of Miami, 446 F.Supp.2d 1344 (S.D.Fla. 2006), a case in which a Florida court held that even testimony by a police officer before a grand jury was not protected by the First Amendment since the testimony was pursuant to the officer’s job.
A recent Illinois case indicates a slight crack in the door may have opened for protection of on-duty speech by public employees. The case involved Ronald Vose, a police officer for the Springfield, Illinois Police Department. As of 2004, Vose was a 26-year veteran of the Department with over 13 years of narcotics-related experience. In July 2002, Vose was promoted to sergeant and was assigned to the Narcotics Unit in the Department.
Sometime in 2004, Vose learned that several detectives in the “Major Case Unit,” which is separate from the Narcotics Unit, were using “trash rips” to obtain evidence to support wiretap locations. A “trash rip” is a search of trash at a specific residence or location that is conducted in order to have a lawful basis to later obtain search warrants. Vose became concerned that this practice could potentially compromise ongoing drug investigations being conducted by the Narcotics Unit, and could also increase the lack of coordination between the activities of the Major Case Unit and the Narcotics Unit.
Vose set about conducting his own investigation into the activities of the Major Case Unit detectives. Vose concluded that the Major Case Unit detectives were: (1) Failing to follow the Department’s proper procedures for obtaining search warrants; (2) violating the laws applicable to the search warrant process; (3) filing factually inaccurate, misleading, or false affidavits with the courts in support of their applications for search warrants; (4) claiming the use of confidential sources who had not been registered by the Department in accordance with established practices; (5) using the information obtained from these sources as the basis for search warrant applications; and (6) using the obtained search warrants for purposes of gathering information on drug investigations even though no such drug investigations were being undertaken by the Narcotics Unit.
Vose brought his concerns to his immediate supervisor, a lieutenant, as well as to the deputy chief of police and the Police Chief. When none of his supervisors did anything about the matter, Vose continued to express in Department meetings his concerns about the improper way in which the Major Case Unit detectives were carrying out their duties. As Vose continued to push his supervisors concerning the issue, a newspaper article was published regarding the allegations of misconduct and alleged perjury by Major Case Unit detectives. Finally, frustrated with the responses he was receiving within the Department, Vose met with and expressed his concerns to Springfield’s mayor.
The Department responded by involuntarily transferring Vose out of the Narcotics Unit. Vose felt that the transfer made his continued employment with the City intolerable, and resigned his employment. He then brought a free speech lawsuit against the City, alleging that he was retaliated against because of his speech concerning the Major Case Unit.
The City filed a motion to dismiss the lawsuit, resting heavily on the Garcetti decision. A federal court, however, was not convinced that Garcetti barred the lawsuit.
The Court held that “unlike Garcetti, the allegations in this complaint are sufficient to support a finding that Vose did not simply speak as a police officer fulfilling his job responsibility, as opposed to a citizen seeking to expose instances of wrongdoing by his colleagues who worked in a different unit. The complaint does not demonstrate that Vose’s speech was motivated purely by a desire to advance his own private interest. The allegations in the complaint show that Vose independently investigated the matter and came to the conclusion that several detectives in another unit were engaging in improper conduct, both when carrying out their official investigative duties and when testifying. Vose’s initial statements to his lieutenant, the deputy chief, and the Chief, and his subsequent statements to the mayor, were not all part of his routine official duties. If true, the allegations in the complaint are enough to show that Vose’s speech was not purely about personal matters or about those that fell squarely within Vose’s official duties. For these reasons, Garcetti is distinguishable from this case, and the City’s motion to dismiss on this basis is denied.”
Vose v. Kliment, 2007 WL 757828 (C.D.Ill. 2007).
This article appears in the May 2007 issue