Westmoreland v. Sutherland, 662 F.3d 714

Background

Bay Village reduced firefighter overtime and eliminated the dive/rescue dive team after Chief Sammon recommended it for budget reasons.
The city cited minimal dive team usage and cost, noting prior gear purchases from Westmoreland's private dive business.
Two drownings occurred after the dive team was disbanded; Westmoreland responded to one and claimed the scene showed dangers from lacking dive capability.
On Sept. 15, 2008, Westmoreland spoke during public comment criticizing the city’s safety service cuts, asserting public safety dangers and asserting personal expert status.
Mayor Sutherland suspended Westmoreland for three tour shifts on Oct. 9, 2008 for alleged insubordination and other misconduct tied to his speech.
An arbitrator upheld the suspension, and the district court granted summary judgment for defendants; the Sixth Circuit reversed and remanded for further proceedings.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Westmoreland spoke as a private citizen on a matter of public concern	Westmoreland spoke off duty, in a public forum, as a public safety expert about community safety.	Speech was not as a private citizen or concerned a public issue within Garcetti/Connick framework.	Speech addressed public concerns and occurred as a private citizen.
Whether Westmoreland's statements were knowingly or recklessly false, removing protection	Statements about the dive team's impact on rescuing a child could be non-defamatory and not knowingly false given available evidence.	Chief Sammon's affidavit showed intentional or reckless falsehoods about the dive team’s effectiveness.	Statements not sufficiently proven knowingly or recklessly false; Pickering balance requires evaluation.
Whether Pickering balancing applies when falsity is alleged	Even with some misstatements, speech about public safety should be protected; truth not required to secure protection.	Knowing/reckless falsity disqualifies protection or shifts balance against employee.	If falsity not proven, Pickering balancing applies; district court erred in undisputedly ruling falsity.
Whether the district court properly treated the speech as protected or non-protected as a matter of law	There is evidence supporting public concern and lack of proof of knowing falsehood; still protected.	The speech contained false statements; reasonable official could view as unprotected.	Remand to address falsity, knowledge, reasonable belief, and balance with public interest.

Key Cases Cited

Garcetti v. Ceballos, 547 U.S. 410 (U.S. 2006) (speech as citizen on public concern when not within official duties)
Connick v. Myers, 461 U.S. 138 (U.S. 1983) (public concern determination based on content, form, context)
Pickering v. Bd. of Educ., 391 U.S. 563 (U.S. 1968) (false statements may remove protection; balancing governs protected speech)
Farhat v. Jopke, 370 F.3d 580 (6th Cir. 2004) (focus on content and public concern; relevance of motive)
See v. City of Elyria, 502 F.3d 484 (6th Cir. 2007) (whether intentional or reckless falsity defeats public concern analysis)
Chappel v. Montgomery Cnty. Fire Prot. Ass'n, 131 F.3d 564 (6th Cir. 1997) (public employee not required to prove truth of speech; focus on knowledge of falsity)
Milkovich v. Lorain Journal Co., 497 U.S. 1 (U.S. 1990) (opinion vs. fact; protected opinion when not defamatory connotation)
Haynes v. City of Circleville, 474 F.3d 357 (6th Cir. 2007) (private employee conduct and public concern determination)
Fox v. Traverse City Area Pub. Sch. Bd. of Educ., 605 F.3d 345 (6th Cir. 2010) (application of Garcetti framework; content and purpose of speech)