Golodner v. Berliner
770 F.3d 196
| 2d Cir. | 2014Background
- In 2008 Golodner (and his company STS), a City of New London contractor, sued the City and police officers ("Golodner I") alleging arrests without probable cause and a City "dual-arrest" policy that deterred complaints and violated constitutional rights.
- Golodner I's complaint alleged both a systemic unconstitutional policy (dual-arrest) and that officers acted maliciously in retaliation for his prior complaints about police misconduct.
- While Golodner I was pending, city officials Berliner and Myers solicited bids and in 2009 awarded the City security contract to a different firm; Golodner alleges this was retaliation for filing Golodner I.
- Berliner and Myers moved for summary judgment in the retaliation suit here, asserting qualified immunity and arguing the lawsuit did not involve speech on a matter of public concern (and, alternatively, that any right was not clearly established).
- The district court denied qualified immunity; on interlocutory appeal the Second Circuit reviewed de novo and limited its assessment of the protected-speech issue to the content of Golodner I as it existed at the time of the alleged retaliation.
- The Second Circuit held Golodner I raised matters of public concern (police misconduct and an allegedly unconstitutional municipal policy), and that the First Amendment right against retaliation for such speech was clearly established in 2009; it affirmed the denial of qualified immunity and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Golodner I constituted speech on a matter of public concern | Golodner: complaint alleged police misconduct and an unconstitutional dual-arrest policy implicating public interest | Berliner/Myers: the prior lawsuit was a private grievance; whole-record review shows motive was personal, not public | Held: complaint, as of 2009, raised public concerns (police misconduct/systemic policy); protected speech |
| Whether post-complaint developments may be considered in assessing the speech | Golodner: only the complaint as it existed when retaliation occurred is relevant | Defs: Connick’s "whole record" requires looking to litigation developments (responses, rulings) | Held: review limited to speech known to defendants at time of action (complaint); later filings/decisions not considered |
| Whether the First Amendment protection applicable to employees extends to independent contractors | Golodner: contractors are protected like employees regarding retaliation for speech | Defs: try to distinguish contractor status from employee cases | Held: Umbehr and precedent treat contractors like employees for First Amendment retaliation purposes |
| Whether the right was clearly established in 2009 so qualified immunity fails | Golodner: existing precedent made obvious that retaliation against speech exposing police misconduct is unlawful | Defs: argue lack of clearly established law applying to these facts | Held: right was clearly established in 2009; qualified immunity denial was proper (fact disputes remain for later stages) |
Key Cases Cited
- Garcetti v. Ceballos, 547 U.S. 410 (2006) (framework for public-employee speech and when speech is protected)
- Connick v. Myers, 461 U.S. 138 (1983) (determine public-concern status by content, form, and context — the "whole record")
- Board of County Commissioners v. Umbehr, 518 U.S. 668 (1996) (First Amendment protection for independent contractors analogous to employees)
- Ruotolo v. City of New York, 514 F.3d 184 (2d Cir. 2008) (lawsuit can be speech but may be limited to personal employment grievances)
- Huth v. Haslun, 598 F.3d 70 (2d Cir. 2010) (suit seeking relief against systemic misconduct may implicate public concern)
- Ashcroft v. al-Kidd, 563 U.S. 731 (2011) (qualified immunity: right must be clearly established with appropriate specificity)
- Lane v. Franks, 573 U.S. 228 (2014) (testimony revealing public corruption is speech on a matter of public concern)
- Reuland v. Hynes, 460 F.3d 409 (2d Cir. 2006) (speech motive relevant but not dispositive; distinguishes personal employment grievances)
- Skehan v. Village of Mamaroneck, 465 F.3d 96 (2d Cir. 2006) (misconduct within police department implicates public concern)