Opposition To DNA Testing Of Detectives Constitutionally Protected

Christopher Burns is employed as a detective by the Connecticut Department of Public Safety (DPS). In the summer of 2008, DPS requested DNA samples from some employees. In response, the Connecticut State Police Union issued a memorandum stating that the Union’s position was that its members “not volunteer to provide a DNA sample to the agency.”

On January 28, 2009, Burns had several conversations regarding his concerns about the collection of DNA samples by DPS. First, Burns spoke with two other DPS detectives and expressed the opinions that, while he understood the reason the agency needed the DNA samples, he felt that a written policy should be in place regarding the collection, storage, disposal, and testing of DNA; that DPS should be working with the Union to develop that policy; and that DNA collection would likely eventually be expanded to include first responders at crime scenes.

Burns also told his Union shop steward “that there were efforts being made within the Eastern District to collect DNA” and “that a major had stated if detectives didn’t submit their DNA, they may not be allowed at crime scenes.” Burns told the steward that he opposed DPS’s DNA collection efforts.

Burns additionally spoke with a supervisor to protest the collection of DNA samples from detectives. Burns said that he “was concerned about the lack of a policy” regarding storage of DNA samples and the possibility that “they were going to start collecting more samples after the patrol troopers.” The supervisor became angry with Burns and ordered Burns to “un-fuck the situation.”

Later, Burns filed a First Amendment free speech lawsuit against DPS, claiming that DPS initiated disciplinary action and took other adverse actions against him in retaliation for Burns’s opposition to the DNA testing. DPS responded that Burns’s speech regarding DNA collection by DPS was unprotected speech because did not address a matter of public concern as it only concerned state police detectives.

A federal court refused to dismiss Burns’s lawsuit. The Court ruled that “Burns’s statements concerned not solely his own employment conditions, but employment conditions for a class of employees in his department (i.e., DPS detectives). Additionally, Burns’s conversations included statements regarding a concern that the scope of people subject to DNA collection by DPS would expand. Moreover, the fact that the Union had issued a memorandum to its members regarding DNA collection further demonstrates that DNA collection by DPS was of concern to a broader set of people than Burns alone and that Burns’s statements were not solely about Burns’s own dissatisfaction with his own employment conditions.

“While DPS argues that Burns’s comments were personally motivated to address his own situation, a speaker’s motive is not dispositive in determining whether his or her speech addresses a matter of public concern. Burns’s speech cannot be categorized as personal, rather than public, merely because it may have been motivated by a personal desire to not give a DNA sample. In any event, the current record does not demonstrate that Burns’s speech was motivated by a personal desire to avoid providing a DNA sample.”

Burns v. Department of Public Safety, 2013 WL 5421680 (D. Conn. 2013).