New Orleans Loses Attempt To Dismiss Controversial Katrina Case

NOTE: The following case was decided just prior to Lane v. Franks, discussed on page 5 of this newsletter. It emphasizes the constitutional protection given to truthful testimony.

Jeffrey Winn was a commander for the New Orleans Police Department. After he testified for the defense in the trial of fellow police officers accused of murdering Henry Glover and burning his body, the Department fired Winn. Winn sued, claiming his termination was in retaliation for his exercise of his free speech rights under the First Amendment.

The City sought the dismissal of the lawsuit, alleging that Winn’s testimony was covered by the rule in the Supreme Court’s opinion in Garcetti v. Ceballos, 547 U.S. 410 (2006). In Garcetti, the Court held that “the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern. However, when 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.”

The City contended that Winn’s speech – his testimony in the criminal trial – was necessarily within the job duties of a police officer, and thus was unprotected by the First Amendment. A federal trial court disagreed, and allowed Winn’s lawsuit to proceed.

The Court found that “because the duty to testify truthfully is the responsibility of every citizen, the First Amendment protection associated with fulfilling that duty of citizenship is not vitiated by one’s status as a public employee. That a public employee’s professional duties provide the initial impetus to appear in court does not affect his/her independent obligation as a citizen to testify truthfully. When a public employee gives testimony pursuant to a subpoena, fulfilling the ‘general obligation of every citizen to appear before a grand jury or at trial,’ he speaks ‘as a citizen’ for First Amendment purposes.

“According to his complaint, the City employed Winn as Commander of the NOPD’s Special Operations Divisions Tactical Unit. In this capacity, Winn was responsible for the search and rescue and security of the City before, during, and after Hurricane Katrina. Assuming these allegations to be true, and viewing them in the light most favorable to Winn, there is simply no basis for the Court to conclude that testifying pursuant to a subpoena in the criminal trial of a coworker is one of the daily professional activities that Winn was paid to perform. That Winn’s testimony related to the subject matter of his employment is not dispositive. Winn’s obligation as a citizen to provide truthful testimony in a judicial proceeding is independent of his duties as a public servant.”

The City argued that even if Garcetti did not bar Winn’s lawsuit, his free speech interest in his testimony was outweighed by the City’s need for organization order. The Court was unconvinced, concluding that “Winn has a significant First Amendment interest. An individual has a strong interest in complying with the demand of a subpoena; failure to answer could result in lengthy incarceration. Moreover, once a citizen appears in court, his testimony is given under penalty of perjury: It simply cannot be that an employee is faced with the ‘Hobson’s choice’ of testifying truthfully under oath and getting fired without recourse or testifying falsely and committing perjury.

“Given the significant First Amendment value of Winn’s speech, the City faces an uphill battle to tip the scales back in its favor. While the City surely has a strong interest in providing effective law enforcement, it is difficult to ascertain how that interest would be furthered by punishing police officers for providing truthful testimony under compulsion of subpoena. In fact, one could argue Winn’s speech actually furthered the City’s interest in providing effective law enforcement by helping to purge the NOPD of suspected criminals within its ranks.”

Winn v. New Orleans City, 2014 WL 790870 (E.D. La. 2014).