NYPD: It's Your Job To Do Things We'll Punish You For Doing

Effluvia

Over at Reason, Ed Krayewski has a story about a particularly outrageous Catch-22 at the intersection of police lawlessness and modern free speech law.

NYPD Officer Craig Matthews complained about an illegal quota system for stops and arrests. As anyone familiar with NYPD culture could predict, he experienced retaliation from his superiors for doing so. When he sued, the NYPD hit him with an argument that's outrageous but very likely legally correct: it's your job to report misconduct, so the First Amendment doesn't prohibit us from retaliating against you for doing so.

Wait, what?

The Association of Lawless Broomstick-Fetishist Brown-Person-Groping Can't-Shoot-Straight Thugs has a point. Because their employer is the government, public employees have limited First Amendment rights to be free of employer retaliation for their speech. But in in Garcetti v. Ceballos the Supreme Court said that right protects speech on matters of public concern unless the speech is part of a job duty:

We hold that 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.

Thus in Garcetti the Court said a Deputy DA had no right to be free of retaliation for pointing out perjury in an arrest warrant application because doing so was his job. I explained how this doctrine works — and how courts have made an exception for professors at public colleges — in this post.

The result is that an entity like the NYPD can argue that its officers are required by their job to report unlawful activity by their superiors and fellow officers, and that therefore their act of reporting such misconduct enjoys no First Amendment protection. They may still enjoy protection under state or federal whistleblower laws, but not the First Amendment. (Whistleblower laws have their own issues, a subject for another post).

The district court's opinion dismissing Officer Matthews' complaint is here. The opinion is very likely correct under current Supreme Court precedent. I submit that it fails to confront adequately one massive problem with this doctrine: a public employer can claim it has a formal policy requiring public employees to report misconduct, while having an actual real-life policy of firing, retaliating against, and even brutalizing whistleblowers. Under this doctrine, as currently applied, the public employer's lie about its policy will protect it from First Amendment claims by whistleblowers. Whatever alleged obligation to report wrongdoing the NYPD may impose on its officers, functionally it has an unwritten doctrine of abusing whistleblowers. That doctrine is demonstrated in practice by case after case after case after case.

But Garcetti apparently permits the NYPD to indulge in a culture of lawlessness while claiming devotion to the law.

Last 5 posts by Ken White

31 Comments

31 Comments

  1. Patterico  •  Oct 15, 2013 @7:53 am

    Speaking as someone who has consistently opposed the Ceballos decision, I'll point out another problem from a perspective you're unlikely to encounter from many others on this blog: that of the government employee. Let's say that the government doesn't like the employee for illegitimate reasons; fill in the blank any way you like. This doctrine allows the government to arbitrarily discipline or fire that employee, either for not reporting misconduct, or for reporting it — whichever works.

  2. Peter H  •  Oct 15, 2013 @7:55 am

    Could he sue for breach of contract? NYPD officers have a union contract which (I presume) says they cannot be disciplined for following the rules. If the nominal rule says he must report misconduct, then retaliation for following that rule would seem to be a breach.

  3. Robert Q  •  Oct 15, 2013 @8:50 am

    @Peter H

    Could he sue for breach of contract? NYPD officers have a union contract which (I presume) says they cannot be disciplined for following the rules. If the nominal rule says he must report misconduct, then retaliation for following that rule would seem to be a breach.

    The problem is the "retaliation" likely isn't improper or contrary to his employment contract. According to the NYT article Ken cites and the decision, he's been getting bad assignments, "mediocre" performance reviews, and "cold shoulders". If he was fired, then he'd likely have a strong cause for wrongful dismissal/breach of contract, especially since the NYPD has already said he was "doing his job". Unless he can put together enough evidence that his treatment would constitute constructive dismissal if he actually quits (not enough info to see if he would be successful in this case), or some sort of tort against the supervisors for giving intentionally bad performance reviews inhibiting his career, I don't think there's anything they contractually did wrong.

    As for my own question: Not having read the initial complaint, it's not entirely clear what kind of relief he's looking for. Was he passed over for a promotion that he wants retroactive pay on? If he just wants a court order mandating that the NYPD put him back on the nice shifts and to not say bad things in his performance reviews, is that feasible? How would a court actually enforce this?

  4. Lucius  •  Oct 15, 2013 @8:56 am

    His job description requires him to report misconduct. Anyone else is also free to report misconduct, though they are not required to do so.

    Whether they are required to do so or not, doesn't the first amendment logically say that either is free to speak out without repressions from the government for doing so? The officer could also be punished if he did NOT reveal the misconduct, but neither should experience government repression if they DO reveal misconduct.

  5. stamford  •  Oct 15, 2013 @9:06 am

    Sounds like a classic double bind . The victim is punished for a behavior at one level and punished for not doing the behavior at another. Interesting to note that Bateson tried to follow the ways in which the double bind can lead to psychological problems. Systems matter.

  6. nl7  •  Oct 15, 2013 @9:16 am

    I've never really liked the concept of 'whistleblower protection' statutes, even though I love whistleblowing as a concept. It seems like it mainly serves the interests of journalists and plaintiffs attorneys, sometimes prosecutors, since those are the people who generally make use of whistleblowers; so there's an actual constituency for these laws. But I don't see why any of those groups would have the ethical right to force an employer to continue hiring someone after a contractual breach.

    Sure, it's probably good that people blow the whistle in a lot of cases. Particularly government employees like this officer reporting abuse, Bradley Manning reporting actual abuse of power (which includes murder, but it will likely never be prosecuted), or Edward Snowden reporting massive surveillance efforts. I'm pro-whistleblower. But I don't think it's feasible to say that whistleblowers have a right to their jobs after breaking the confidence of their employers.

    I've also never liked the caselaw in administrative law that lets government employees have hearings before firings, and gives them procedural due process for their jobs. Jobs ought to be at will as a default, including government jobs, except when they need to be otherwise (e.g. the military). There shouldn't be a right to a hearing and all the rest.

    No employee should have a right to retain their job, absent a voluntary contract otherwise, any more than any employer has the right to retain an employee.

    So I really admire this cop for doing the right thing. I think the NYPD should retain him and clean house with others. But I don't think he should have a legally enforceable right to his job, even though I desperately wish police departments would employ more people like him.

    Note that this sort of lawsuit is normally used to protect accused cops seeking to retain or reacquire their jobs. The number of times that good cops try to get their jobs back is dwarfed by the number of times that bad cops try to get their jobs back. So those with an eye towards reforming police departments ought to cheer Craig Matthews but also oppose laws and court decisions that bestow police officers generally with a right to keep their jobs and powers.

  7. Quiet Lurcker  •  Oct 15, 2013 @9:45 am

    Please pardon a dumb question here.

    How does the First Amendment even come into play in this one?

    If there is a written requirement that Ofcr. Matthews report misconduct, and he knew about that requirement, he's performing his job duties as they have been spelled out to him. If there is no written requirement, and if he has evidence supporting his assertion, he's still doing his job as he understands it, because he's reporting his suspicions of a crime. Either way, he's covered because he's doing his job.

  8. CompSciJedi  •  Oct 15, 2013 @10:01 am

    @Quiet Lurcker

    Except he's not covered for doing his job, because he's a public employee as an NYPD officer, meaning the Garcetti v Ceballos decision takes effect as Ken described in this post.

  9. Lucius  •  Oct 15, 2013 @10:45 am

    The officer could be punished as an employee if he were not doing his job. His job is to protect the public from clear abuses under the law, and he did that. His job is not public relations, or to hide criminal policies and abuses against the public from the public.

    A college professor such as William S. Penn is not doing his very-different job if he fails to maintain a reasonable academic standard, level of discourse, and productive use of students' paid time in his classroom. If he does not, then action can be taken for this defined job failure, but even here, not specifically because of the content of his speech.

  10. Trent  •  Oct 15, 2013 @10:45 am

    But I don't see why any of those groups would have the ethical right to force an employer to continue hiring someone after a contractual breach.

    Whistleblower statues are predicated under the belief that there is an inherent public interest in reporting wrong doing. Usually these statues are limited to government employees and as a result wrong doing by government but some states are progressive enough to realize that any wrong doing deserves protection.

    Allowing government and companies to retaliate against employees that expose illegal actions is inherently wrong IMO. I like statues like the foreign corrupt practices act and think whistle blower protection should be extended to cover everyone.

  11. Quiet Lurcker  •  Oct 15, 2013 @11:34 am

    CompSciJedi–

    The Supreme Court noted that Ceballos was speaking as a Deputy DA when he raised his concerns about the veracity of the search warrant. Therefore he was shit out of luck if the DA subjected him to freeway therapy. Had somebody raised concerns even though it wasn't their job — say, a paralegal in another part of the DA's office — they would have enjoyed First Amendment protection. Hence the person with the most relevant knowledge and the ethical duty to raise issues had fewer rights and people with less knowledge and fewer obligations had more rights.

    Extracted verbatim from this post.

    If I am correct in reading between the lines, I surmise that you base your argument on the logic of a finding that implicates rule 11 of the federal rules of civil procedure, which as I understand it, boils down to, 'lawyers, don't lie to the court,' or words to that effect.

    I respectfully and vehemently disagree with that.

  12. David Schwartz  •  Oct 15, 2013 @11:51 am

    @Quiet Lurcker: Because he's "doing his job", he can be disciplined if his supervisors don't like the way he's doing it. The job of a supervisor is to supervise how people do their jobs. It's if he's not doing his job that he'd be safe. His supervisors can't discipline him for, say, an editorial he writes for a local paper, so long as that is *not* part of him "doing his job". If it's his job to write editorials, then of course he can be disciplined for how he writes editorials.

    The position here is, basically, "It's your job to report misconduct, therefore you can be disciplined for how you do or don't report misconduct because that falls under 'how you do your job', which it is our job, and legal right, to evaluate".

  13. Dion starfire  •  Oct 15, 2013 @1:48 pm

    In the interests of brevity, I'll boil the discussion of this issue down to a 3-second conversation:

    Lawyer: The legal system is messed up.
    Layperson: DUH! (i.e. "no shit", blatantly fake surprise, etc.)

    Now, let's move on to the libertarians citing this as a reason for minimal government.

  14. David C  •  Oct 15, 2013 @2:15 pm

    You know, I don't think it's wrong to say that this does not have First Amendment protection. If it's part of your job, then it's part of your job.

    However…

    As far as I can tell, the NYPD is arguing that they are retaliating against this guy for no good reason at all. First amendment or not, this should not be allowed.

    Let's say you work for the Post Office, and your job is to deliver packages. Your office has an unwritten policy that packages coming to or from the boss's ex-wife get "lost" half the time. But you deliver them all, and there is retaliation against you.

    This would not be a First Amendment situation, but you are being punished for doing your job properly. You are being punished for NOT going along with behavior which is improper and likely illegal. And THAT should get its own protection (and so should reporting it to your boss's boss.)

  15. WDO  •  Oct 15, 2013 @2:27 pm

    Wait a minute — so back to the professor thing — aren't "teaching students things" and "writing books/articles on things" more or less their official duties? Wouldn't that mean under Garcetti that professors absolutely could be disciplined/fired for the content of their speech?

  16. Dustin  •  Oct 15, 2013 @2:28 pm

    Wait, what? This is one of your satire posts that flies over my head, right? Cause it sounds like you're saying they can clamp down on whistleblowers if it's their job to blow the whistle. Like they are just outright owning up to being an evil department.

  17. David C  •  Oct 15, 2013 @2:31 pm

    Wait a minute — so back to the professor thing — aren't "teaching students things" and "writing books/articles on things" more or less their official duties? Wouldn't that mean under Garcetti that professors absolutely could be disciplined/fired for the content of their speech?

    The Supreme Court explicitly ducked that question. From the Garcetti case:

    We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.

  18. Dan Hill  •  Oct 15, 2013 @3:40 pm

    How morally bankrupt does an organization have to be in order to stand up in freaking court of law and effectively say "nothing to see here, just punishing an employee for doing his job"????

  19. Quiet Lurcker  •  Oct 15, 2013 @5:52 pm

    David Schwartz –

    Based on personal experience from analogous situations, I know for a fact that there is/will be language in the procedures that sets forth, at least by implication, that such behavior should be reported, to whom it should be reported, and how it should be reported.

    If he followed those procedures in professional manner, then he was doing his job and complying with procedure. There is no cause for retaliation/termination/other disciplinary actions.

  20. FatTriplet3  •  Oct 15, 2013 @8:37 pm

    Want to be further incensed? Listen to this episode of This American Life from 2010: http://www.thisamericanlife.org/radio-archives/episode/414/right-to-remain-silent. A good cop spent months recording his daily life. Eventually they threw him into a mental institute, without trial or representation, to hide their sins. More here: http://en.wikipedia.org/wiki/Adrian_Schoolcraft

  21. FatTriplet3  •  Oct 15, 2013 @8:40 pm

    You can read more about the incident on Wikipedia. The officers name was Adrian Schoolcraft.

  22. JTM  •  Oct 15, 2013 @8:59 pm

    @David C "As far as I can tell, the NYPD is arguing that they are retaliating against this guy for no good reason at all."

    Not quite – "retaliation" in this case is a legal term of art, so the common use of the word isn't so helpful here. I don't have the actual statute in front of me, but retaliation claims usually involve three elements: (1) an employee engages in a protected activity, and (2) the employer then takes an adverse employment action against the employee (3) because of the protected activity.

    In this case, NYPD argued that the employee did not engage in a protected activity (i.e., the speech wasn't protected by the 1st Amendment because it was a required job duty). Once that's established, the employee's retaliation claim fails as a matter of law, so the NYPD doesn't have to explain any adverse employment actions at all.

  23. David Schwartz  •  Oct 15, 2013 @10:34 pm

    @Quiet Lurcker Sure, but the question isn't whether there's cause for disciplinary action but whether there will actually be disciplinary action and, if so, what recourse he will have. Since this was disciplinary action for how he did his job, rather than retaliation for constitutionally protected conduct, he has no recourse.

  24. David C  •  Oct 16, 2013 @6:22 am

    I would also like to point out that if a defense is rooted in the First Amendment, it will ONLY apply if the employer is the government. An employee of, say, Enron, would have no First Amendment recourse whatsoever. That's another reason why I think the protection should come from somewhere else.

    @JTM, if reporting illegal activity is not already protected, it should be. Wouldn't that fix the problem in both the private and public sectors?

  25. CJK Fossman  •  Oct 16, 2013 @6:59 am

    I've also never liked the caselaw in administrative law that lets government employees have hearings before firings, and gives them procedural due process for their jobs. Jobs ought to be at will as a default,

    At one time in the US of A, government jobs were at will. The result was a massive patronage system.

    Maybe you would prefer that, but I would not.

  26. JTM  •  Oct 16, 2013 @9:53 am

    @David C
    There may be other remedies, such as those protections provided by whistleblower statutes. I don't know what remedies are available for employees in New York.

    As a policy matter, I think whether you want to protect employees who report illegal activity (and the manner of protection) is an open question. There are always trade-offs. Yes, whistleblower laws make it more difficult to wrongfully discipline an employee who honestly and in good faith reports illegal activity. But they also make it harder to discipline employees who file overwhelming numbers of frivolous complaints. Or employees who file a complaint against their supervisors whenever it's time for a performance evaluation, or whenever they get a disciplinary write-up. Or the employees who file a complaint or grievance every six months on the dot to make sure there's always a presumption that an adverse employment action is retaliatory.

    When you protect good employees, you also end up protecting a lot of bad ones. And then the pendulum swings the other way – instead of outcry about "why did this good cop get fired" you get public outrage about "why are all these bad cops still on the job." Once you go beyond what is required by the Constitution, the level of protection we want to afford employees is more a political question than a legal one.

  27. David C  •  Oct 16, 2013 @10:29 am

    Or the employees who file a complaint or grievance every six months on the dot to make sure there's always a presumption that an adverse employment action is retaliatory.

    If they can find actual illegal activity every six months, I think I'm willing to give them a lot of protection. If they're making it up, then that should be a cause for employment action in itself. If the facts are in question, then let a jury decide if necessary.

    a presumption that an adverse employment action is retaliatory.

    Who says we need that presumption? If an employee is making a claim of retaliation in court, it should be up to that employee to convince the court of their claim. If the claims have no merit then any accusation of retaliation would have no merit.

    Yes, you may have to go to court to sort it out, but a government employee could more or less do the same thing right now by writing a letter to the editor every six months and claiming retaliation based on that if something happens. Or filing a sexual harassment claim, or any of the other things that are currently protected by law.

  28. JTM  •  Oct 16, 2013 @5:41 pm

    @David C "If they can find actual illegal activity every six months, I think I'm willing to give them a lot of protection. If they're making it up, then that should be a cause for employment action in itself. If the facts are in question, then let a jury decide if necessary."

    The problem with that approach is that it's prohibitively expensive to resolve these questions. Among the things that you would have to look at are whether the employee's allegations are true, whether the employee's allegations establish the employer's illegal conduct, and whether the employee was acting in good faith. Adjudicating questions of fact is really expensive, since you're not going to be able to get the case dismissed in the early stages of litigation.

    When you make it really expensive for employers to discipline employees, employers don't discipline them even when discipline is merited.

    I'm not saying the protections shouldn't be there, just that it's a balancing act. Legislation that protects good employees also makes it more difficult and costly to discipline bad employees. There's no purely legal fix that lets you protect employees you want to protect, without constraining employers' ability to discipline bad employees. It's more a question of policy than of law.

  29. Harry Johnston  •  Oct 16, 2013 @9:36 pm

    @nl7: I strongly recommend you don't move to New Zealand! Our employment law requires that *any* employer demonstrate that they had a good reason for dismissing an employee, and followed proper procedure when deciding to do so.

    It is true that there are some bad employees who take advantage of this. All the same, on the whole, I prefer our system to yours. (At least I know I can't be fired because the boss doesn't like the colour of my shirt!)

    As always, YMMV.

  30. Quiet Lurcker  •  Oct 17, 2013 @6:07 am

    David Schwartz –

    "Since this was disciplinary action for how he did his job, …"

    I must ask, are you certain you are not assuming facts not in evidence?

    All I read is that he 'complained', never mind the manner in which he did so. If, for example, Mr. Matthews were to quietly approach a supervisor who is not directly involved and outline his suspicions to that supervisor, and ask that supervisor what the proper procedures are, then the NYPD has little or no recourse. On the other hand, if he caused a scene, for example, then, yes, there might be some recourse – but only because he wasn't being professional.

  31. wkwillis  •  Oct 18, 2013 @1:15 pm

    My brother works in a mental hospital and is the shop steward. He files union grievances, notices that the administration is violating state laws, federal laws, regulations of various kinds, etc. About once a month.
    They retaliate against him at every opportunity.
    He stays the shop steward instead of letting some one else take over the job for a simple reason. If he is the only one whistleblowing, he is the only one getting retaliated against. When he retires he can bundle them up, bring them in front of a judge, and demonstrate a clear pattern.
    He figures he's buying a house on the installment plan.