Part-Time Police Officers Who Complained About On-Duty Drinking Lose Free Speech Claim

A group of seasonal and/or part-time police officers previously employed by the Village of Ocean Beach, New York Police Department filed a federal court lawsuit against the Village alleging a variety of constitutional violations. The officers alleged that beginning in May 2002, the Police Chief hired officers who had not been certified by the civil service department of Suffolk County, hired civilians as police dispatchers, permitted police officers to drink alcoholic beverages while on duty, and instructed other officers to chauffeur for intoxicated officers and their civilian friends.

According to the officers, they each complained to the Police Chief on numerous occasions that the Department was left dangerously short of personnel when officers were permitted to drink on duty and in their vehicles and other officers were assigned to chauffeur them around. The officers also alleged that they complained to the Chief that the retention of uncertified officers posed a constant threat to the public and their own safety. The officers alleged in court that the City retaliated against them for these complaints.

A federal district court found the officers’ complaints to be unprotected by the First Amendment. Citing the rule of Garcetti v. Ceballos, 547 U.S. 410 (2006), the Court stated that “once public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. All of the officers’ complaints to their superiors related to their concerns about their ability to properly execute their duties as police officers. They expressed concern, among others, that the assignment of officers to chauffeur for intoxicated officers left the Department short-handed, and that the hiring of uncertified officers and the retention of unqualified and/or corrupt officers affected their ability to perform their job assignments safely, and that they were told not to issue summons to certain individuals and businesses.

“The officers’ speech challenging the City’s alleged cover-ups of officer misconduct, including their complaints to the Suffolk County District Attorney’s Office, was undertaken in the course of performing one of their core employment responsibilities of enforcing the law, and thus was speech made pursuant to their official duties. Moreover, all of the relevant speech reflected the officers’ special knowledge about the City which was gained as a result of their positions as police officers based upon what they observed or learned from their job. Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a citizen.”

Carter v. Incorporated Village of Ocean Beach, 2010 WL 599388 (E.D. N.Y. 2010).

This article appears in the April 2010 issue