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Friday, January 10, 2014

Another First Amendment Retaliation Case Involving a Police Officer

The courts certainly has been active lately in deciding First Amendment cases involving police officers.  In the latest case, Swetlik v. Crawford, (7th Cir. Dec. 23, 2013), the 7th Circuit Court of Appeals ruled against a police detective who brought a First Amendment lawsuit against a City and City officials for bringing charges against him for allegedly lying about the police chief's conduct.
The dispute that lead to the charges against the detective is interesting.  According to the opinion, police arrested a suspect and brought him into custody.  The suspect refused to eat, so the police chief arranged for a home-cooked meal to be delivered to the suspect at the station; however, the suspect had already been taken to the jail.  In a conversation following the transport, the chief expressed his disappointment with the detective's failure to return the suspect to the station as requested by the chief.  The detective's interpreted the chief's final words to him - "I will deal with you later" - as a threat, and reported the chief to the deputy chief.  When the deputy chief failed to take any action, the union filed 37 grievances against the chief.  The mayor ordered an investigation, which resulted in a recommendation that both the detective and the chief be terminated. Charges against both officers were brought to the police and fire commission. The detective was placed on paid administrative leave pending the outcome of the commission proceedings. At the conclusion of the hearing, the hearing officer recommended dismissal of the charges.  Shortly thereafter, the detective brought this suit against the Mayor, City Council, and the City for violations of his First Amendment rights.
The district court ruled in favor of the City defendants, finding that the detective's statements were not protected speech because they did not address a matter of public concern and, in any event,  the City was justified for bringing the charges against the detective. 
On appeal, the 7th Circuit first rejected the City official's argument that absolute immunity applied, holding that absolute immunity is not available in employment decisions. Second, the 7th Circuit applied the First Amendment retaliation test to determine whether (1) his speech was constitutionally protected; (2) the detective suffered a deprivation likely to deter speech; and (3) his speech was a motivating factor in the employer's action.   Although the detective's speech did address a matter of public concern, the City defendants' interest in bringing charges for the detective's conduct (lying about the chief) was justified and outweighed the detective's interest in making statements.  As a result, the detective's First Amendment rights were not violated when he was brought up on charges.

For local government officials, the more relevant discussion is contained in Judge Easterbrook's concurring opinion.  While he agrees with the outcome of the case, he asserts that because elected officials (Mayor and City Council members) have a First Amendment protected right to bring charges against the police officers, they should not have been sued for exercising their constitutional rights. He would have dismissed the case on those grounds rather than get to the merits.
Post Authored by Julie Tappendorf, Ancel Glink


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