A case involving the Somerset County, Maryland Sheriff’s Office is a good illustration of the operative dichotomy in free speech law since the Supreme Court’s decision in Garcetti v. Ceballos, 547 U.S. 410 (2006). If the employee is “speaking as an employee” when s/he is saying or writing something, then the speech is unprotected by the First Amendment. On the other hand, if the employee is “speaking as a citizen,” then the speech is eligible for First Amendment protections.
The Maryland case involved Deputy James Durham, who was involved in the pursuit of a motorcycle operator traveling at a high rate of speed. Durham apprehended the motorcyclist and met some resistance as he attempted to make the arrest. To gain compliance, Durham used force, including knee strikes to the suspect’s ribs, open hand strikes, and the application of pepper spray. Durham prepared a report of the arrest, which included an accurate description of his use of force.
Shortly thereafter, Durham was advised by his superiors that the motorcyclist was claiming that he was injured during the arrest. Durham alleged that a sergeant ordered him to delete information in his report related to the use of force, and indicated that he wanted the motorcyclist charged with assault and resisting arrest. Durham initially refused the sergeant’s request, believing that altering his report as requested would render it false and misleading.
In response to Durham’s refusal to alter the report of the incident, the sergeant told Durham that he was suspended and threatened him with criminal charges if he did not change the report as ordered. The sergeant went so far as to advise Durham of his Miranda rights. When faced with the threat of arrest, Durham agreed to change his report.
On September 4, 2008, Durham submitted a grievance to the Human Resources office of the Commissioners of Somerset County regarding the August 29, 2008 interaction with the sergeant. Immediately after submitting his grievance, Durham was suspended by a vote of the Commissioners of Somerset County. Durham was also informed that his grievance was going to be referred to the Sheriff for investigation. In addition, Durham was told that his own conduct during the arrest incident was going to be investigated by the sergeant.
Concerned about this course of events, Durham sent letters to the Maryland State Police, the Maryland Attorney General’s Office, the Maryland Police Training Commission, Governor Martin O’Malley, and the Somerset County State’s Attorney Office recounting these events and alleging “misconduct, malfeasance, corruption, abuse of power and breach of the public trust” on the part of several SCSO officers. With the letters, Durham attached copies of his grievance, the form indicating he was given his Miranda rights, the police report of the August 21, 2008 incident as originally submitted and as rewritten on the orders of his superiors, and the memorandum suspending him after he filed his grievance. When advised that none of these agencies would assist him, Durham sent similar letters and materials to the press and an unnamed United States Senator.
The County eventually cleared Durham on the ten charges related to the arrest, but found him guilty of the two charges related to the letter- writing campaign. When the County fired him, Durham filed a federal court free speech lawsuit.
A federal trial court refused to dismiss the lawsuit. The Court found that “Durham clearly was speaking as a citizen and not as an employee. It was not within the scope of his job duties or responsibilities to send any of the letters he sent complaining of Defendant’s actions. These letters were not addressed through Durham’s chain of command but were prepared to voice his own personal opinions regarding the breach of public trust by the Department.
“Defendant’s entire ‘speech as an employee’ argument is premised on the fact that Durham attached to his letters documents that were prepared in the scope of Durham’s official duties, such as his original report and altered report of the incident. It is the letters themselves, however, and not these attached documents that represent the substance of the speech that Durham asserts is protected. The attachments simply provide demonstrative evidence supporting the claims of misconduct, malfeasance, corruption, abuse of power and breach of the public trust made in the letters.”
Durham v. Jones, 2011 WL 1557841 (D. Md. 2011).
This article appears in the June 2011 Issue