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Thursday, August 8, 2013

ASA Testimony Entitled to First Amendment Protection

On August 2, 2013, the Seventh Circuit Court of Appeals ruled that an assistant state’s attorney (ASA) was entitled to First Amendment protection when he testified against his supervisor, the McHenry County States Attorney, pursuant to a subpoena, in front of a grand jury and at the supervisor's criminal misconduct trial.  Chrzanowski v. Bianchi, No. 12-2811, 2013 WL 3958456, at *1 (7th Cir. Aug. 2, 2013).
The ASA filed suit against the States Attorney (his supervisor), claiming that his First Amendment rights and his rights under various state statutes had been violated when his supervisor interrogated him and eventually fired him in retaliation for his testimony.  The supervisor moved to dismiss the Section 1983 claims, arguing that the ASA's testimony was given as a part of his official duties and, therefore, the First Amendment’s protections did not apply. The district court agreed and held that the ASA had not presented a valid constitutional claim and, even if he had, the supervisor would likely be entitled to qualified immunity. The ASA appealed and the Seventh Circuit reversed.
The Seventh Circuit reasoned that the district court’s conclusion placed weight on an excessively broad job description and failed to assess what tasks the ASA was paid to perform in the course of his daily professional activities. The court determined that as an ASA assigned to a felony trial courtroom, he was employed to prosecute felonies by engaging in a range of expressive activity, but that he was not employed to witness criminal wrongdoing and then testify about it. As a result, the ASA's testimony was made outside his official duties and entitled to First Amendment protection. The court also stated that a public employee speaks as a citizen when he gives testimony pursuant to a subpoena because he is fulfilling the general obligation of every citizen to appear before a grand jury or at trial.
Finally, the court briefly addressed the qualified immunity argument advanced by the district court and concluded that reasonable officials, such as the supervisor, would understand that retaliating against an employee for giving grand jury and trial testimony would violate the First Amendment.
Post Authored by Caitlyn Sharrow and Julie Tappendorf, Ancel Glink


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