Patterico's Pontifications

10/15/2013

Thank You For Reporting That Misconduct By Your Department, Officer. Your Reward: Legally Permitted Retaliation

Filed under: General — Patterico @ 7:58 am



Ken White has an interesting post about the power of law enforcement agencies to discipline employees for reporting misconduct:

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?

Yup. It all goes back to the Garcetti v. Ceballos decision, which I railed against in posts too numerous to link individually, but which you can read here. The upshot: law enforcement can require you to report misconduct — and then, when you do report misconduct, they can legally discipline you for your report . . . precisely because it was part of your job to report it! Because when you fulfill functions of your job, you see, you lose your First Amendment protections.

Ain’t the law great?

26 Responses to “Thank You For Reporting That Misconduct By Your Department, Officer. Your Reward: Legally Permitted Retaliation”

  1. What idiot nonsense, an employee can be compelled to be a witness against himself?

    ropelight (e1c3d2)

  2. if you get in bed with piggy piggy thug fascists like an american police force

    they gonna rape you silly

    it’s who they are it’s what they do

    happyfeet (8ce051)

  3. So there really is no incentive, to report misconduct, where are we, back in Tammany Hall,

    narciso (3fec35)

  4. Catch 22.

    Patricia (be0117)

  5. The truth is such things are not a First Amendment issue (unless the employee chooses to leak rather than complain privately as part of his job duties. Leaking is protected, as Justice Souter pointed out)

    It’s actually something more important than a first amendment right.

    Sammy Finkelman (37a793)

  6. Of course, the whole thing is a scam, the new review boards will force police officers, into not arresting the requisite number of offenders.

    narciso (3fec35)

  7. Somehow, in New York City, we’ve gone a week without any murders, in spite of the stop-question-and frsik slowdown.

    But the effects of changes are slow, and some of the frisks were because of a quota system, and Police Commissioner Raymond Kelly has figured a new gang-watching tactic.

    Sammy Finkelman (37a793)

  8. “The law is an ass” as some famous judge remarked. Name them and shame them, then tar, feathers, rail, and out of town.

    htom (412a17)

  9. ISTM that disciplining you for doing something you are required to do *as part of your job* raises serious procedural due process concerns.

    aphrael (f55c78)

  10. I’m going to disagree. Again. Pickering was probably wrong and the Supreme Court should just reverse it and not keep tinkering with it. The whole first Amendment jurisprudence since the Warren Court is weird enough without elevating employment into a First Amendment right. If a court wanted to, it could find that this officer has the First Amendment right to show up for work in a t-shirt that says “F*** The Draft” (not asterisked) and then burn the flag in front of the station house during his coffee break. Wouldn’t put it past Warren, Marshall, Douglas (and some of those other doofuses that inter alia gave us Roe v. Wade) to do just that if they were still around.

    Yes, I know, the Fourteenth and Section 1983. Except that the right that is being violated is not really his right to speak — it is his right to certain expectations under his employment agreement. He can talk all he wants in front of, and to some extent inside, the unemployment office. The test should be not whether his First Amendment rights were violated but whether his rights under his employment agreement were violated. And he is probably pursuing those remedies in the appropriate city and state forums.

    nk (dbc370)

  11. I don’t see how this is a 1st Amendment case anyway. The officer should be protected by state whistleblower laws and the City and NYPD’s own regulations.

    Estragon (19fa04)

  12. The law’s an ass!

    askeptic (b8ab92)

  13. If you’re going to “blow the whistle”, never report it to your superiors, but always to the NYT – they seem to have more concern about protecting the identity of people who report wrong-doing, than does the police.

    askeptic (b8ab92)

  14. You can play along and keep your job and its associated rewards, or you can refuse and accept the consequences.

    Sounds like the NYPD understands plata o plomo theory just fine.

    ras (be1e0d)

  15. I’m not saying he was justified in his subsequent actions, but want this exactly the complaint of Chris Dorner? That he was disciplined for reporting misconduct?

    it also brings to mind the story of Regina Tasca, who was fired for STOPPING an incident of police brutality.

    Mr. Feet is right. If you’re in law enforcement, and still want to be able to retain your soul, I suggest finding a new line of work.

    Ghost (476943)

  16. *wasn’t, not want. but you all knew that.

    Ghost (476943)

  17. Patterico

    How would you go about fixing it?

    The law confuses me (imagine!) but I’m curious about how bells get unrung in your world.

    steveg (794291)

  18. .

    … And this is why we need to retain the right to be anonymous on the internet and in general in our communications…

    .

    Smock Puppet, Gadfy, Racist-Sexist Thug, and Bon Vivant All In One Package (afdedb)

  19. }}} but always to the NYT – they seem to have more concern about protecting the identity of people who report wrong-doing, than does the police.

    Only if you’re reporting the wrongdoing of evil conservative types.

    If you’re reporting the wrongdoing of, say, Muslims, they think you shouldn’t “hide like a coward”, behind anonymity…

    Smock Puppet, Gadfy, Racist-Sexist Thug, and Bon Vivant All In One Package (afdedb)

  20. it’s who they are it’s what they do

    Comment by happyfeet (8ce051) — 10/15/2013 @ 8:23 am

    It’s not supposed to be is the problem.

    Smock Puppet, Gadfy, Racist-Sexist Thug, and Bon Vivant All In One Package (afdedb)

  21. “The law is an ass” as some famous judge remarked. Name them and shame them, then tar, feathers, rail, and out of town.

    Comment by htom (412a17) — 10/15/2013 @ 9:26 am

    To be pedantic, the quote is from Oliver Twist, written by Charles Dickens, and the exact words were:
    “If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is a ass — a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience — by experience.”

    That is more than mixed metaphor, it’s blended into one of those nasty cleanse drinks.

    I agree with the sentiment. Rarely happens that the law opens his eye though. Justice is supposed to be blind, but the law isn’t justice. Should have both eyes open.

    Dan S (00fc90)

  22. Another case in the same vein, though this time the authorities in question are high school “government”, aka management…

    School Suspends Teen for Wanting to Drive Her Drunk Friend Home
    http://thestir.cafemom.com/teen/162564/school_suspends_teen_for_wanting

    Dan S (00fc90)

  23. It isn’t a first amendment case. If you follow the directions of department policy and truthfully report a misconduct, you should be immune from any retaliation. If you suffer treatment out of line with your previous performance reviews, the department should have the burden to prove they didn’t retaliate.

    Ken in Camarillo (2c0dee)

  24. 14. Comment by askeptic (b8ab92) — 10/15/2013 @ 12:42 pm

    14.If you’re going to “blow the whistle”, never report it to your superiors, but always to the NYT

    I think the New York Daily News would run with the story more – even though they are, in many ways, very pro-cop – but they are pro-employee.

    By the way, nobody should ever rely on only one media outlet.

    Sammy Finkelman (ea6ca0)


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