A Crack In The Garcetti Wall

With its decision in Garcetti v. Ceballos, 547 U.S. 410 (2006), the Supreme Court announced that the First Amendment would no longer protect public employees from retaliation by their employers for speech arising out of the public employee’s job. Since Garcetti, public safety employees have lost free speech lawsuits even though they were able to establish they were retaliated against for giving truthful testimony in internal affairs interviews, cooperating with criminal investigations, or writing complaints about policies or the misuse of funds. In all these cases, and many more, courts held that since the speech occurred as part of the employee’s job, the speech was unprotected by the First Amendment.

One of the most far reaching Garcetti cases was Deprado v. City of Miami, 446 F.Supp.2d 1344 (S.D.Fla. 2006), where a federal trial court held that testimony by a police officer before a grand jury was part of the officer’s job, and that the First Amendment thus did not prohibit the employer from retaliating against the officer because of the speech.

A recent federal Court of Appeals decision, however, not only calls the Deprado result into question, but establishes a potentially significant crack in the armor given to employers by Garcetti.

The case involves Robert Reilly, a former police officer for Atlantic City, New Jersey. Reilly was a member of the vice and intelligence units, and had a role in several investigations that targeted Robert Flipping, the City’s Director of Public Safety. The highly-publicized investigation of corruption in the Department focused on Dennis Munoz, an Atlantic City police officer and Flipping’s friend and colleague.

The Munoz investigation was conducted by the State Police with the assistance of personnel in the Department. One of Reilly’s informants, a prostitute, alleged that Munoz acted as her pimp. Reilly was called to testify as a witness for the prosecution in the resulting trial. Flipping, who was one of Munoz’s supervisors in the vice section, was also a suspect in the investigation but was never charged. Flipping assisted Munoz’s defense by providing Munoz’s lawyer with information about witnesses against Munoz; he also testified for Munoz in the trial.

After the trial, the Department began an investigation into Reilly. During the investigation, Flipping sent letters to the City’s business administration that recommended that Reilly be removed from the promotion list, that he be suspended for 90 days and demoted from sergeant to patrol officer, and referred to Reilly as “exhibiting behavior throughout his career that indicates racism, bigotry, sexism, lack of impartiality toward the public, irresponsibility, bringing the Department into disrepute, failure to perform lawful duties, and failure to treat others with respect.”
Eventually, under pressure of the disciplinary investigation, Reilly retired. He then filed a lawsuit against the City alleging that the City’s conduct was retaliation for his testimony in court. Reilly’s case presented the federal Third Circuit Court of Appeals with the opportunity to address whether testimony in court by a police officer is, for Garcetti purposes, part of the officer’s job and thus unprotected by the First Amendment.

The Appeals Court was unwilling to extend Garcetti that far. The Court found that in its opinion in Garcetti, the Supreme Court “distinguished between employee speech and citizen speech, and held that it was necessary to limit government employees’ freedom because employers need a significant degree of control over their employees’ words and actions, and governmental employees, when they speak out, can express views that contravene governmental policies or impair the performance of governmental functions.” Thus, in the eyes of the Appeals Court, the crucial question was whether a police officer testifying in court was “acting as a citizen” or “acting as an employee.” Citing an old Supreme Court decision, the Court found “that it is axiomatic that every citizen owes to his society the duty of giving testimony to aid in the enforcement of the law. We have found that it is the duty of every person to testify truthfully before a duly constituted tribunal and that these values, along with the First Amendment values, would not be served if the fear of retaliation and reprisal effectively muzzled witnesses testifying in open court. We have also found persuasive reasoning that testimony is offered in a context that is inherently of public concern. Employees could either testify truthfully and lose their jobs or could lie to the tribunal and protect their job security.

“Because Garcetti offers no express instruction on the application of the First Amendment to the trial testimony of a public employee, we turn to the settled principles. The duty to testify has long been recognized as a basic obligation that every citizen owes his government. The citizen’s obligation to offer truthful testimony in court is necessary to protect the integrity of the judicial process and to insulate that process from outside pressure. Thus, the act of offering truthful testimony is the responsibility of every citizen, and the First Amendment protection associated with fulfilling that duty of citizenship is not vitiated by one’s status as a public employee. That an employee’s official responsibilities provided the initial impetus to appear in court is immaterial to his/her independent obligation as a citizen to testify truthfully.

“When a government employee testifies truthfully s/he is not simply performing his or her job duties. Rather, the employee is acting as a citizen and is bound by the dictates of the Court and rules of evidence. Thus, the principles discussed in Garcetti support the need to protect truthful testimony in court.”

Reilly v. City of Atlantic City, 532 F.3d 216 (3d Cir. 2008).

This article appears in the September 2008 issue