NYPD: Police Whistleblowers Who Claim Retaliation Aren't Covered by First Amendment Because It's Part of Their Job

What blue wall of silence?


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The New York Police Department is facing a lawsuit from Craig Matthews, a police officer who alleges he was retaliated against for the blowing the whistle on street stop quotas in his precinct. Matthews is seeking First Amendment protections for his whistleblowing, but the NYPD is arguing, as it and other police departments have before, that Matthews' whistleblowing, reporting misconduct, was part of his official duties and so not subject to protection.

The argument, police departments say, is supported by a 2006 Supreme Court ruling, Garcetti v. Ceballo. Richard Ceballos was a district attorney in Los Angeles who claimed he was denied a promotion after criticizing a search warrant for being riddled with misrepresentations; the court ruled as a public employee statements made in the course of his employment did not enjoy First Amendment protections. Police departments have, often successfully, argued that this exemption extends to police officers reporting misconduct in their departments and by their peers, because doing so is part of their jobs.

Except it's not really. As Radley Balko reported for Reason in 2010, police culture aggressively discourages whistleblowing. The "blue wall of silence" is "the most successful Stop Snitchin' campaign in history," as one activist told Balko. So the argument deployed by police departments that their officers shouldn't be protected by the First Amendment is especially egregious. Departments serious about fighting the "stop snitching" culture in the streets and in their precinct stations ought to be fighting for whistleblower protections, as should police unions, and not against them.

The 2006 decision may end up being revisited by the Supreme Court in the context of police whistleblowers. Earlier this year, the 9th Circuit Court ruled a Burbank officer could indeed go forward with a whistleblower lawsuit based on First Amendment protections. What police departments, and police unions, fight for should help make clear what they stand for, as purported agents and servants of the public and of police officers respectively.

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  1. Ed, you got one bit wrong…here, let me fix it for you…

    as purported sworn agents and servants of the public state

    The public only exists for agents of the state and the state itself to exercise thier power on. They serve themselves, not the public.

    1. The Public is everyone but you.

  2. “What police departments, and police unions, fight for should help make clear what they stand for, as purported agents and servants of the public and of police officers respectively.”

    We know darn well what the majority of them stand for;

    Going home after their shift (plus overtime as wanted) no matter what harm they may entail to the people they allegedly serve and protect,

    Immunity from the laws they purport to enforce (traffic, gun, and other facets of the law – “badge ’em” and walk free/professional courtesy),

    A fat pension and continued immunity when retired,

    Shoot dogs, break down doors and taser/pepper spray and shoot people as desired – without consequence to themselves.

  3. McGruff is looking a little under the weather. Is he okay?

    1. He bit a crime that had gone over. He’ll be fine in a couple days.

    2. McGruff is a burnt-out, alcoholic. The guilt from supporting a drug war that results in numerous dogs being shot has only exacerbated his self-loathing due to him being a narc.

      1. numerous dogs being shot

        They were only pit bulls. They’re the canine equivalent of black teenagers. No dog really cares.

      2. Jesus. I just experienced a moment of epiphany. Somewhere, somehow, there’s McGruff porn, isn’t there?

        1. Must resist…google…work…

        2. Rule 34, right?

          1. Indeed. Probably a whole porn video, voiced by the actual McGruff. Hey, crime doesn’t pay, but porn does.

  4. I wonder if McGruff the Crime Dog is wearing anything under that trench coat of his?

    “Woof, woof, hey, Mr. Mayor, I got something for ya! Check out my crime-fighting baton, heh heh…”

  5. I think I agree with the Supremes here (in general terms).

    Work-related speech should be subject to employer scrutiny and consequence. What if, for example, a cop refused to report wrongdoing that they were required to report? If that refusal is protected by the 1A (and it would be; your right to speak includes a right not to speak), then there wouldn’t be any consequences possible, no?

    The problem here isn’t that there are consequences for speech. Its that there are the wrong kinds of consequences being meted out here. I’d be surprised if there weren’t policies, and maybe even statutes, prohibiting retaliation against whistleblowers. If so, that (not the 1A) should be the gravamen of the complaint.

    If not, then why the hell not? And what’s stopping the PD’s political masters from stepping in, regardless?

    1. Maybe governments shouldn’t have employees at all. You know, to avoid these problems. Ditto schools.

  6. “. . . Matthews’ whistleblowing, reporting misconduct, was part of his official duties and so not subject to protection.”

    Let me see if I’ve got this straight – the police are saying that its perfectly legal for the police to retaliate against other cops who report crimes?

    So if, say, an officer reports *too many* crimes (like say, takes too many burglary reports) and skews his agency’s stats, he can be retaliated against for doing the job he was hired to do.

    1. Well, they are saying that it is not a first amendment violation to do so, anyway.
      But the fact that they are pushing this at all, rather than busting heads of the people who retaliated against a whistle-blower reveals a really disturbing FYTW attitude. Which isn’t a surprise except that they are so brazen about it.

  7. “It is your job to report misconduct, and if you do so we’ll make your life hell. Heads we win, tails you lose.”

    1. That’s the funny part. I think there argument is that he can be punished for doing his job.

      Not for failing to do his job, but for actually doing it.

      1. That is exactly what their argument is. He followed written policy. Thing is, it’s the unwritten policy that matters. Fuck you. That’s why.

      2. This is the sort of thing that makes non-lawyers shake their heads. I mean, *defending* yourself from charges of retaliation by saying that what you retaliated against him for was just doing his job?

        Doesn’t NY have some kind of whistleblower statute to avoid these kinds of weird situations?

  8. Are street stop quota’s really misconduct though? Since they come from the top shouldn’t they be considered policy?

  9. he was given undesirable assignments, a mediocre performance review and the cold shoulder from his immediate supervisors.

    But he wasn’t fired, suspended, docked, etc. So he has no case.

    Yes, you have free speech. But if you want to be rewarded, you’ll kiss ass instead. That’s pretty much every job.

  10. I every time spent my half an hour to read this webpage?s articles or reviews everyday along with a mug of coffee.


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