Probationary Officer’s Refusal To Retract Truthful Report Is Protected Free Speech

Jason Jackler was a probationary police officer in Middletown, New York. On January 5, 2006, Jackler was dispatched to a “Mobil on the Run” convenience store in Middletown to assist MPD Sergeant Gregory Metakes in the arrest and transportation of one Zachary T. Jones. When Jackler arrived, Jones was handcuffed with his hands behind his back. Jackler opened the rear driver-side door of his patrol car and Metakes placed Jones in the back seat. As Metakes closed the door, Jones called Metakes a “dick,” loudly enough for both Jackler and Metakes to hear. Metakes immediately reopened the door and struck the still-handcuffed Jones in the face.

At the police station later that night, the MPD desk officer, Police Officer Sal Garretto, asked Jones about a large bump on Jones’s head and abrasions on his face. Jones responded that during the arrest Metakes had smashed Jones’s head into the ground, and that after handcuffing and placing Jones in the police car and hearing Jones call him a “dick,” Metakes had punched Jones in the face. Both Garretto and MPD Lieutenant Warycka, the supervisor on duty that night, noted in written reports that they observed injuries to Jones’s face. Jones stated that he wanted to talk to someone about making a complaint.

With the assistance of Garretto and Warycka, Jones filed a civilian complaint against Metakes for the use of excessive force. The Department then directed Jackler to file a supplementary report detailing what had occurred. On the morning of January 11, Jackler filed his one-page report, which corroborated Jones’s civilian complaint that after hearing Jones utter the word “dick,” Metakes had reopened the car door and struck the handcuffed Jones in the face.

In his subsequent civil lawsuit, Jackler alleged that Metakes, who had since been promoted to lieutenant, had a “close personal and professional relationship” with the Police Chief and other supervisors, who immediately sought “to cover up and conceal the misconduct and illegal actions committed by Sgt. Metakes in connection with his arrest and apprehension of Jones on January 5, 2006.” Jackler contended that two of the supervisors met with him and threatened him unless he withdrew his supplemental report and refiled a new report exonerating Metakes. Jackler contended that when he refused to do so, he was fired.

The federal Second Circuit Court of Appeals held that Jackler’s claims, if true, could be the basis for a free speech lawsuit by Jackler. The Court found that Jackler’s refusal to rewrite his report was clearly a matter of public interest: “Exposure of official misconduct, especially within the police department, is generally of great consequence to the public. The Fourth Amendment to the United States Constitution, which applies to the States through the Fourteenth Amendment, prohibits the use of excessive force by policemen in the course of an arrest, and it is a federal offense to deprive a person of his or her civil rights under color of law. Deliberate indifference to claims of such civil rights violations may be inferred from a municipality’s lack of appropriate response to repeated complaints of such violations. Thus, for several reasons, including public safety and welfare – as well as preservation of the public fisc – police malfeasance consisting of the use of excessive force is plainly a matter of public concern.”

Finding that Jackler’s conduct was potentially protected by the First Amendment, the Supreme Court then had to deal with the Garcetti rule, under which speech made by public employees as part of the job is not constitutionally protected. The Court found that Jackler was “speaking as a citizen,” not as an employee, when writing his report and refusing to retract it. And, as the Court noted, speech “as a citizen” is potentially constitutionally protected:

“In the context of an official investigation into possible wrongdoing, a citizen has a right – and indeed, in some circumstances, a duty – to give evidence to the investigators. A law enforcement officer does not, by reason of his public employment, lose his civic right to give evidence. When a person does give evidence, he has an obligation to speak truthfully. Retracting a truthful statement to law enforcement officials and substituting one that is false would expose the speaker – whether he be a police officer or a civilian – to criminal liability.

“Nor does anyone have authority to require a witness to retract his true statements and make statements that are false, for the persons who induce someone to commit a crime such as those described above are themselves guilty of that crime. In the present case, Jackler had a strong First Amendment interest in refusing to make a report that was dishonest. We think it clear that his refusals to change his statement as to what he witnessed when Metakes struck Jones were directed at a matter of public concern, rather than an effort to further some private interest of Jackler personally. We conclude that Jackler’s refusal to comply with orders to retract his truthful report and file one that was false has a clear civilian analogue and that Jackler was not simply doing his job in refusing to obey those orders from the department’s top administrative officers and the chief of police.”

One member of the three-judge appeals court panel felt even more strongly about Jackler’s claims, and wrote in a separate concurring opinion: “The Soviet purge trials of the 1930s remain notorious in large measure because they were marked by ‘confessions…made under pressure of intensive torture and intimidation.’ And it seems unlikely that Galileo’s dispute with Church authorities about Copernican theory would be as infamous had he been forbidden to assert – as he apparently believed – that the earth moves about the sun, rather than forced to state publicly and contrary to his conviction that the sun revolves around the earth.”

Jackler v. Byrne, 2011 WL 2937279 (2d Cir. 2011).