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Minnesota Deputies’ Case Shows The Evidence Necessary For A ‘Pretext’ Claim

Many “retaliation” cases follow the same general structure. First, the employee must present a prima facie case by showing that (1) he engaged in an activity protected by the First Amendment, (2) he suffered an adverse employment action, and (3) the protected conduct was a “substantial or motivating factor” in the employer’s decision to take the adverse employment action. The employer can rebut the employee’s prima facie showing by…

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Firefighter’s Involvement In Staffing Initiative Protected By First Amendment

Ben Upton was a firefighter for the City of Royal Oak, Michigan. Upton became president of the firefighters’ association in 1996, an office he held until the City terminated his employment. In the face of the City’s considering substantially reducing firefighter personnel, Upton and the firefighters petitioned in the spring and summer of 2004 to place the manning initiative on the November 2004 ballot. The initiative caused discord between…

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Statements To FBI In Criminal Case Not Protected By First Amendment

Under the Supreme Court’s decision in Garcetti v. Ceballos, 547 U.S. 410 (2006), the free speech guarantees of the First Amendment provide no protection to public employees who make statements as part of their jobs. The Garcetti decision has a broad swath, and applies to a wide variety of statements public safety employees make as part of their job. Robert Watts is an officer employed by the City of…

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Freedom Of Association Does Not Cover Friends

David Lord was a corrections officer for Erie County, Pennsylvania. In 2005, Lord met Teo Underhill and the two moved into an apartment together. On January 1, 2006, while the two were sharing an apartment, Underhill was arrested. He was later released into Lord’s custody pending trial. Following a jury trial, Underhill was found guilty of misdemeanor simple assault and disorderly conduct. He was sentenced to 48 hours in…

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First Amendment Protects Speech, Not ‘Mere Candidacy’ For Public Office

Brian Keating is a deputy for the Wayne County, Michigan Sheriff’s Department. In 2006, Keating ran for sheriff against Warren Evans. During the election, Keating was transferred from his road patrol position to one in the County jail. When Keating was informed of his transfer, he became very upset and announced his resignation. Keating later calmed down and reported for his new job at the jail, but he was…

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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…

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Union’s Contract With Telemarketer Not Protected By The First Amendment

Local 4053 of the International Association of Fire Fighters, which represents firefighters in Maryville, Tennessee, contracted with FireCo, LLC, a telemarketing company, to assist in raising funds by selling tickets to an oldies benefit concert. Michael Doherty and Alan Holmes, the president and treasurer of Local 4053, signed the FireCo contract. Shortly after the telephone sales calls began, the City began receiving complaints from its citizens regarding the calls….

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Internal Affairs Investigation Not Protected By First Amendment

Under the Supreme Court’s decision in Garcetti v. Ceballos, 547 U.S. 410 (2006), public employees have no free speech right when they “make statements pursuant to their official duties.” In other words, the Constitution provides no protection to an employee for speech that is part of the job, and the employer is constitutionally free to discipline the employee for the speech, even if the speech is truthful. A lawsuit…

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Small Town Politics Result In Verdict In Deputy’s Favor

Cooper County, Missouri has a population of 17,061, and a sheriff’s department made up of both reserves and a few sworn deputies. The Sheriff is Jerry Wolfe. Dwight Pfeiffer was one of Wolfe’s deputies, his wife Robin Pfeiffer was a reserve deputy, and his stepdaughter Jennifer Tice was a detention officer. In 2008, Dwight Pfeiffer ran against Wolfe and lost. Within weeks, Wolfe fired both Pfeiffers and Tice. Pfeiffer…

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Firefighter’s E-Mail Protected By First Amendment

Brad Love was a volunteer and part-time firefighter for the Sugar Creek Township Fire Department in Indiana. During the Republican primary election in the Spring of 2006, Bob Boyer, a retired volunteer firefighter, challenged the incumbent for the office of Sugar Creek Township Trustee. One of the Trustee’s principal duties is to appoint a fire chief to oversee the Department. Boyer’s campaign platform was based on what he viewed…

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‘Speaking As An Employee’ Versus ‘Speaking As A Citizen’

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…

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Police Chief Loses Claim For Pension Spiking

Darren Nance was terminated as a Newark, New Jersey police officer on September 3, 1996 and has not served as a police officer in the past 14 years. On June 24, 2010, a jury found that Nance’s termination was in retaliation for invoking his right to petition the government under the First Amendment and that Nance was subject to retaliation in violation of New Jersey’s Law Against Discrimination. Subsequently,…

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Officer Wins Lawsuit and $600K, Loses Claim For Reinstatement

Darren Nance was terminated as a Newark, New Jersey police officer on September 3, 1996 and has not served as a police officer in the past 14 years. On June 24, 2010, a jury found that Nance’s termination was in retaliation for invoking his right to petition the government under the First Amendment and that Nance was subject to retaliation in violation of New Jersey’s Law Against Discrimination. Subsequently,…

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Police Chief’s Testimony In Defamation Case Constitutionally Protected

Robert Deutsch was the Police Chief for Laramie, Wyoming. In the summer of 2007, Deutsch used City petty cash to purchase a laptop computer for $1,433.11. The purchase violated City policy, but was apparently unknown to the public until a city council meeting in May 2008. At the meeting, Tim Hale, a private citizen, stated that there might have been a misappropriation of City petty cash by a department…

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Officer’s Speech About Alleged Affair Not Constitutionally Protected

In Garcetti v. Ceballos, 547 U.S. 410 (2006), the Supreme Court held that if a public employee engages in speech “pursuant to job duties,” then the speech is unprotected by the First Amendment’s free speech guarantees. As the Supreme Court held, “the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern. It is well established, however, that a…

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Officer’s Testimony On Behalf Of Girlfriend’s Sister’s Husband Potentially Constitutionally Protected

Brian Reid was a senior police officer for the City of Atlanta, Georgia. On July 27, 2006, Reid testified as a character witness on behalf of Michael Grissom at a bond hearing in a United States magistrate court proceeding. Grissom was Reid’s longtime girlfriend’s sister’s husband, and had known Reid for at least eight years. When the Department learned of Reid’s testimony, it began a disciplinary investigation. The Department…

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Court Upholds Fire Captain’s Demotion For Affair With Subordinate

Randolph Starling was a captain with the Palm Beach County, Florida Fire Rescue Department. In May 2005, he arranged to have Carolyn Smith, another firefighter, transferred to his fire station as his subordinate. Sometime during the next few months, Smith and Starling – then married but separated from his wife – began an intimate relationship. Starling’s wife filed for divorce in July, and he moved into Smith’s house in…

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Firefighter’s Parking Lot Sign Not Protected By First Amendment

Peter Yackel is a firefighter in the Township of Edison, New Jersey. On June 1, 2009, at approximately 7:30 a.m., Yackel arrived for his tour of duty at Fire Station No. 3 and parked his pickup truck in the parking lot as he always did. Displayed in the bed of Yackel’s pickup truck was a piece of poster board which read: “Choi Lies! Save Public Safety In Edison.” The…

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Whistleblowing Report Potentially Protected By First Amendment

Melvin Kindle worked for the City of Jeffersontown, Kentucky as a police officer; Bradley Silveria and Diedra Adkins were dispatchers for the Police Department. On October 27, 2006, the three tendered a report pursuant to Kentucky’s Whistleblower Act. The report alleged that a lieutenant colonel with the Department (1) violated federal and state wage and hour laws by requiring dispatchers to report for duty 15 minutes early and not…

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Participation In Police Union Election Can Be Protected By First Amendment

Anthony Ferraioli, Aldrin Lamboy, and Dawn Fray are police officers with the City of Hackensack, New Jersey. In June 2008, an election for the position of delegate to the New Jersey Police Benevolent Association (PBA), a labor organization representing police officers, was held in the locker room of Police Department headquarters. As all three officers later alleged, the Police Chief made it known to all officers in the Department…

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Participation In An Internal Affairs Investigation Not Protected By First Amendment

The ramifications of Garcetti v. Ceballos, 547 U.S. 410 (2006), continue to be felt in free speech cases brought by public employees. In Garcetti, the Supreme Court held that where speech is made as part of an employee’s job, it is not protected by the First Amendment. The teachings of Garcetti allow an employer to retaliate against an employee for speech made in the course of the job without…

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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…

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Mississippi Police Captain Wins Jury Verdict On Retaliation Claim

Cliff Hardy was a captain in the Tupelo, Mississippi Police Department and headed the Department’s internal affairs unit. Robert Hall, an African-American deputy chief, was facing charges for assisting a drunk driving suspect. When the Tupelo City Council held a “town hall” meeting to discuss the issue of race relations with the Police Department, Hardy spoke up in support of Hall, and suggested that Hall had been targeted for…

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Milwaukee Sheriff Improperly Brought Religion Into Workplace

In April 2006, the newly-formed Fellowship of the Christian Centurions (the Centurions), a peer support group created specifically for law enforcement officers, sent flyers to law enforcement agencies in the state of Wisconsin. The advertisement offered the officers an opportunity to discuss issues unique to them, but from a religious perspective. This included discussions on impacting others for Christ and on Christ’s impact in their lives. The flyer’s primary…

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Comments About DUI Policy Protected By First Amendment

Bill Wright worked as a police officer for the City of Salisbury, Missouri. On September 21, 2007, the City’s mayor met with Wright and the Police Chief. The next day, Wright wrote a letter on his personal letterhead, addressed to “To Whom It May Concern,” regarding the meeting that occurred on the previous day. In the letter, Wright recounted the fact that the Mayor complained that Wright had been…

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