Lead Opinion
Judge SACK concurs in the panel opinion and files a separate concurring opinion.
Plaintiff Jason M. Jaekler, a former probationary police officer in Middletown, New York (“Middletown” or the “City”), appeals from a judgment of the United States District Court for the Southern District of New York, Cathy Seibel, Judge, dismissing his complaint, brought under 42 U.S.C. § 1983, alleging principally that defendant Matthew T. Byrne, Chief of the Middletown Police Department (“MPD” or the “Department”), and other members of the Department violated his First Amendment right to freedom of speech by causing the termination of his employment in retaliation for his refusals to make false statements in connection with an investigation into a civilian complaint alleging use of excessive force by a Department officer. To the extent pertinent to this appeal, the district court granted defendants’ motion for judgment on the pleadings on the basis of Garcetti v. Ceballos,
I. BACKGROUND
The following description of the events recounts the allegations in the complaint — • and the contents of exhibits attached to it — -in the light most favorable to Jaekler and draws all reasonable inferences in his favor, as required in a review of a Rule 12(c) dismissal of his action. See, e.g., Hayden v. Paterson,
A. The Complaint’s Assertion of First Amendment Claims
Jaekler became a probationary police officer in MPD in January 2005. Byrne was the Chief of Police and senior administrator in charge of MPD’s daily operations; defendants Paul Rickard and Patrick Freeman were MPD lieutenants and administrators. Decisions as to the hiring, retention, or promotion of MPD personnel
1. The Events of January 5, 2006
On January 5, 2006, Jackler was dispatched to a “Mobil on the Run” convenience store in Middletown to assist MPD Sergeant Gregory W. Metakes in the arrest and transportation of one Zachary T. Jones. When Jackler arrived, Jones was handcuffed with his hands behind his back. Jackler opened the rear driver-side door of his patrol car, and Metakes placed Jones in the back seat. As Metakes closed the door, Jones called Metakes a “dick,” loudly enough for both Jackler and Metakes to hear. Metakes immediately reopened the door and struck the still-handcuffed Jones in the face.
At the police station later that night, the MPD desk officer, Police Officer Sal Garretto, asked Jones about a large bump on Jones’s head and abrasions on his face. Jones responded that during the arrest Metakes had, inter alia, smashed Jones’s head into the ground, and that after handcuffing and placing Jones in the police car and hearing Jones call him a “dick,” Me-takes had punched Jones in the face. Both Garretto and MPD Lieutenant Warycka, the supervisor on duty that night, noted in written reports that they observed injuries to Jones’s face. Jones stated that he wanted to talk to someone about making a complaint.
MPD had a written policy prohibiting the use of unnecessary or unjustified force. MPD Departmental Order number 03-01 dated March 21, 2003, entitled “USE OF PHYSICAL FORCE” (“MPD Order 03-01” or “MPD Directive”) — a copy of which is attached to the complaint as Exhibit A— set out “guidelines for the use of force by members of [MPD]” (MPD Order 03-01, at 1) and described permissible, escalating, “level[s] of force” (id. at 2-3). It provided, in part, that
[unnecessary force occurs when unjustified physical abuse of a person has occurred or when it is apparent that the type or degree of force employed was neither necessary nor appropriate, or when any degree of force is utilized as summary punishment or vengeance. THE USE OF INDISCRIMINATE FORCE IS PROHIBITED.
(Id. at 1-2 (emphases added).)
Accordingly, on the night of January 5, 2006, with the assistance of Garretto and Warycka, Jones filed a civilian complaint against Metakes for the use of excessive force. Jones’s civilian complaint — a copy of which is attached to Jackler’s complaint as Exhibit B — was filed on an MPD Police Personnel/Department Complaint Form (“MPD Complaint Form”) and repeated Jones’s description to Garretto of Me-takes’s actions during the arrest and Me-takes’s punching Jones in the face after he had been handcuffed and placed in the police' car. Jones’s complaint stated that Jackler had witnessed the latter assault. “[U]nder penalty of perjury,” Jones signed the MPD Complaint Form, whose penultimate sentence stated: “False statements made in the foregoing complaint are punishable as a Class A misdemean- or pursuant to Section 210.45 of the Penal Law” (MPD Complaint Form (emphases in original)).
2. Jackler’s Report and His Refusals To Make False Statements
The MPD Directive also included requirements that officers who used — or were present during the use of — physical force file written reports:
*231 Reporting — when a subject resists and physical force becomes necessary, to overcome said resistance, each officer who used physical force will complete a Subject Resistance Form for each person upon whom he/she used physical force....
An offense report will be completed by the officer who initially used physical force and a supplementary report will be completed by all other officers present whether they used physical force or not.
(MPD Order 03-01, at 3-4 (emphasis added).)
On January 9, 2006, defendant Freeman directed Jackler to file a supplementary report detailing what had occurred in connection with Metakes’s arrest of Jones. On the morning of January 11, Jackler filed his one-page report (“Jackler Report” or “Report”), which corroborated Jones’s civilian complaint that, inter alia, after hearing Jones utter the word “dick,” Me-takes had reopened the car door and struck the handcuffed Jones in the face. Jackler’s report — a copy of which is attached to his complaint as Exhibit C— stated as follows:
ON 1/5/06 AT APPROX. 8:55PM, I, OFFICER JACKLER, RESPONDED TO MOBIL ON THE RUN TO ASSIST SGT. METAKES OF THE NARCOTICS UNIT. UPON ARRIVAL, SGT. METAKES HAD A SUBJECT, NOW KNOWN TO ME AS ZACHARY JONES, HANDCUFFED AND UP AGAINST THE NARCOTICS CAR FOR DISORDERLY CONDUCT. I OBSERVED JONES TO HAVE MULTIPLE ABRASIONS ON HIS FACE. I OPENED UP THE DRIVER’S SIDE REAR-DOOR OF MY PATROL UNIT #6 AND SGT. METAKES PLACED JONES IN THE BACK SEAT. UPON CLOSING THE DOOR, JONES UTTERED THE WORD “DICK”. SGT. METAKES THEN RE-OPENED THE DOOR AND STRUCK JONES IN THE FACE, THEN RE-CLOSED THE DOOR. WHILE I WAS TRANSPORTING JONES BACK TO [THE POLICE STATION] HE ASKED ME “IS HE ALLOWED TO DO THAT”? I STATED TO JONES TO DISCUSS THE SITUATION WITH THE OTHER OFFICER ONCE WE GET BACK [TO THE STATION].
Metakes, who has since been promoted to lieutenant, had a “close personal and professional relationship” with Byrne, Rickard, and Freeman (Complaint ¶ 22), and those defendants immediately sought “to cover-up and conceal the misconduct and illegal actions committed by Sgt. Me-takes in connection with his arrest and apprehension of Jones on January 5, 2006” (id. ¶ 27). On the afternoon of January 11, Rickard and Freeman met with Jackler. At that meeting, they “threaten[ed]” Jackler (id. ¶ 30) and, as “directed by] Chief Byrne,” attempted to “coerce [Jackler] to withdraw his supplemental report dated January 11, 2006 and refile a new report which contained false, incomplete and misleading information all in an effort to conceal the illegal actions and misconduct of Sgt. Metakes” (id. ¶ 31). Rickard and Freeman repeated their attempts in several subsequent meetings. The Jackler Report was truthful; Jackler refused to alter it and refused to provide a false report.
On January 19, Byrne and Rickard appeared at the monthly meeting of the Board of Police Commissioners. In retaliation for Jackler’s refusals to alter or falsify his Report as to the conduct of Metakes, Byrne and Rickard recommended at that meeting that Jackler not be retained as a permanent police officer and that he be terminated as a probationary officer. In support of that recommendation, they presented the Board with false, incomplete,
B. The Motion To Dismiss and the District Court’s Decision
Jackler commenced the present action pursuant to 42 U.S.C. § 1983 against Byrne, Rickard, and Freeman in their individual and official capacities, making the above allegations and asserting principally that defendants had caused, and conspired to cause, him to be dismissed from MPD in retaliation for his “refusal to cooperate with the defendants and commit a criminal act by altering or falsifying his supplemental report” (Complaint ¶ 51), in violation of his rights under the First Amendment (see id. ¶¶ 43-53). He also asserted claims under the Fourth, Fifth, and Fourteenth Amendments and the Racketeer Influenced and Corrupt Organizations Act.
Defendants answered the complaint, admitting that Jackler had filed the Report, having been instructed to do so, and asserting that because his statements were made pursuant to his official duties, Jackler had no cognizable claim under the First Amendment. Defendants also asserted, inter alia, defenses of qualified immunity. They moved pursuant to Fed.R.Civ.P. 12(c) for judgment on the pleadings as to all of Jackler’s claims, contending principally that Jackler’s First Amendment claims are barred by Garcetti v. Ceballos,
Assuming, for the purposes of this motion, that everything contained in plaintiffs complaint is true, plaintiff is unable to state a claim upon which relief can be granted because based upon plaintiffs own pleadings, his speech was made pursuant to his official duties as a police officer. Therefore, plaintiffs speech is not protected by the First Amendment from employer discipline.
(Memorandum of Law in Support of Defendants’ Motion for Judgment on the Pleadings at 9.)
In opposition to defendants’ motion, Jackler sought to defend only his First Amendment claims for retaliation, his Fourteenth Amendment substantive due process claims for loss of his position with MPD, and his claims that defendants conspired to deprive him of his First and Fourteenth Amendment rights. As to his First Amendment retaliation claims, Jackler argued that Garcetti is inapplicable. Whereas the plaintiff in Garcetti had been fired for engaging in speech that was required as part of his job, Jackler’s First Amendment claims were based not on his Report, but only on his subsequent “refusals] to commit a blatantly wrongful — if not criminal — act.” (Plaintiffs Memorandum of Law in Opposition to Defendants’ Motion for Judgment on the Pleadings (“Jackler Memorandum Opposing Motion”) at 3.) It was “his refusal to speak or report falsely about a matter of serious public concern [that] form[ed] the basis of [his claims of a] First Amendment violation.” (Id. at 4 (emphases added).) Jackler argued that he “had a First Amendment right as a private citizen to decline the defendants’ invitation to falsify his official report.” (Id. at 4.)
Defendants submitted a reply memorandum in support of their motion, contending that there was no legally significant difference between Jackler’s making the statements in his January Report and his refusals to make contrary statements. They
In a Memorandum Decision and Order dated February 11, 2010, reported at
Jackler’s refusal to alter his report was done in his capacity as a police officer, and that refusal only occurred because he was an officer. Ironically, it is because he was a public employee with a duty to tell the truth that his insistence on fulfilling that duty is unprotected.
But because the Second Circuit made so clear in Weintraub that speech is pursuant to official duties where it is “part-and-parcel of the employee’s concerns about his ability to properly execute his duties,”593 F.3d at 203 ..., and that in determining whether an employee speaks as a citizen the focus must be on the role the speaker occupied when he spoke, see id. ..., and because it is so clear on the facts as alleged by Jackler that he refused to withdraw or alter his truthful report in the belief that the proper execution of his duties as a police officer required no less, I do not see how I can avoid the conclusion that he was speaking as an officer, not a citizen, when he did so.
The district court dismissed Jackler’s due process claims because “Jackler had no protectable property right in employment with the Middletown PD.” Id. at 326. The court dismissed Jackler’s claims that defendants had conspired to violate his constitutional rights because it found that he had not stated any viable claim of a constitutional violation. See id. at 325-26. The court deemed Jackler’s undefended claims abandoned.
The court also stated that this Court’s decision in Fierro v. City of New York,
Judgment was entered dismissing the complaint in its entirety, and this appeal followed. Although Jackler’s notice of appeal indicated that he challenged all of the district court’s rulings, his brief on appeal contains no argument that any ruling other than the dismissal of his First Amendment retaliation claims was incorrect, and we thus regard all of his other claims as abandoned. See generally Otero v. Bridgeport Housing Authority,
On this appeal, the parties agree that Jackler’s First Amendment claims are not that defendants retaliated against him for filing his Report but rather that they retaliated because of his refusals to follow their ensuing instructions to retract the Report and to speak falsely. (See, e.g., Jackler brief on appeal at 5 (“Having refused to alter his police report to coverup a sergeant’s unlawful use of force, plaintiff engaged in a protected First Amendment activity.” (emphasis added)); Defendants’ brief on appeal at 17 n. 4 (“it is only plaintiffs refusal to withdraw the supplemental report and re-submit a false report that forms the basis for his First Amendment retaliation claim”); see also Jackler Memorandum Opposing Motion at 3-4 (“Jackler’s official act of filing his January 11, 2006 report was not what constituted a violation of his First Amendment rights. Rather, his refusal to speak or report falsely about a matter of serious public concern is what forms the basis of plaintiffs [claims of a] First Amendment violation.”).) Jackler contends that as he complains of retaliation for his refusals to retract his Report and make statements that were false, the district court erred in ruling that Garcetti and Weintraub required the conclusion that such a claim is beyond the scope of the First Amendment. Defendants urge affirmance on the ground that “[fjiling a truthful report and not filing a false report are the same act” (Defendants’ brief on appeal at 21) and that both were “pursuant to [Jackler’s] official duties as an officer and ..., therefore, not protected by the First Amendment” (id. at 25-26). Defendants also argue that they are entitled to qualified immunity. For the reasons that follow, we conclude that the claim that defendants caused Jackler to be fired in retaliation for his refusals to obey their instructions to retract his truthful filed Report and file a false report is not beyond the scope of the First Amendment.
A. Government Employees and Their Limited First Amendment Rights
It is by now well established both that a citizen, upon entering government service, “by necessity must accept certain limitations on his or her freedom,” Garcetti
At the same time, the Court has recognized that a citizen who works for the government is nonetheless a citizen. The First Amendment limits the ability of a public employer to leverage the employment relationship to restrict, inci*235 dentally or intentionally, the liberties employees enjoy in their capacities as private citizens. See Perry v. Sindermann,408 U.S. 593 , 597 [92 S.Ct. 2694 ,33 L.Ed.2d 570 ] (1972). So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively. See, e.g., Connick, supra, at 147 [103 S.Ct. 1684 ] (“Our responsibility is to ensure that citizens are not deprived of fundamental rights by virtue of working for the government”).
Garcetti
In Pickering, which the Garcetti Court called “a useful starting point” for describing the applicability of First Amendment principles to speech by government employees,
Pickering and the cases decided in its wake identify two inquiries to guide interpretation of the constitutional protections accorded to public employee speech. The first requires determining whether the employee spoke as a citizen on a matter of public concern. See [391 U.S.] at 568 [88 S.Ct. 1731 ]. If the answer is no, the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech. See Connick, [461 U.S.] at 147 [103 S.Ct. 1684 ], If the answer is yes, then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public. See Pickering,391 U.S., at 568 [88 S.Ct. 1731 ].
Garcetti
In Garcetti, the Court parsed the first of the above “two inquiries” into separate questions as to (1) whether the subject of the employee’s speech was a matter of public concern and (2) whether the employee spoke “as a citizen” rather than solely as an employee. See, e.g., id. at 420-22, 424,
To constitute speech on a matter of public concern, an employee’s expression must “be fairly considered as relating to any matter of political, social, or other concern to the community.” Connick,
“Exposure of official misconduct, especially within the police department, is generally of great consequence to the public.” Branton v. City of Dallas,
“When an employee speaks as a citizen addressing a matter of public concern, the First Amendment requires a delicate balancing of the competing interests surrounding the speech and its consequences.” Garcetti,
The Pickering balance requires full consideration of the government’s interest in the effective and efficient fulfillment of its responsibilities to the public. One hundred years ago, the Court noted the government’s legitimate purpose in “promoting] efficiency and integrity in the discharge of official duties, and to maintain proper discipline in the public service.”
Connick,
If the employee did not speak as a citizen, the speech is not protected by the First Amendment, and no Pickering balancing analysis is required. See, e.g., Connick,
In Weintraub, for example, this Court concluded that the plaintiff teacher’s complaints of classroom disorder, which related to his core duties as a teacher, were not protected by the First Amendment in part because “his speech ultimately took the form of an employee grievance ” filed with his union,
The Garcetti Court dealt with a First Amendment claim by a deputy district attorney who alleged that he was punished for writing a disposition memorandum that criticized an affidavit on which a search warrant had been based and that “advise[d] his supervisor about how best to proceed with [the] pending case.”
B. The Rights of Civilians To Say Only What They Believe Is True
Most of the above cases dealt with government employees who complained that they were penalized by their employers on account of statements the employees affirmatively made. Jackler, in contrast, contends that he was penalized for his refusals to follow defendants’ instructions that he retract his Report and make statements that would have been untrue, and that his refusals are protected by the First Amendment.
There is certainly some difference between compelled speech and compelled silence, but in the context of protected speech, the difference is without constitutional significance, for the First Amendment guarantees “freedom of speech,” a term necessarily comprising the decision of both what to say and what not to say.
Riley v. National Federation of the Blind of North Carolina, Inc.,
In Wooley, for example, the Court upheld a First Amendment challenge by New Hampshire citizens to that State’s requirement that their cars bear license plates displaying the slogan “Live Free or Die,” contrary to their political, religious, moral, or ethical views. The Court stated,
we are faced with a state measure which forces an individual, as part of his daily life — indeed constantly while his automobile is in public view- — to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable. In doing so, the State “invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.”
In the context of an official investigation into possible wrongdoing, a citizen has a right — and indeed, in some circumstances, a duty — to give evidence to the investigators. See, e.g., Kaluczky v. City of White Plains,
The simple right to give evidence is not at issue here because Jackler’s contention is only that he suffered retaliation for refusing to retract his Report and refusing to substitute statements that were false. However, when a person does give evidence, he has an obligation to speak truthfully. For example, it is a federal offense to make “any materially false, fictitious, or fraudulent statement or representation” in any matter within the jurisdiction of the federal government, 18 U.S.C. § 1001. It is also an offense under New York law to make a false report with respect to a crime:
A person is guilty of falsely reporting an incident in the third degree when, knowing the information reported ... to be false or baseless, he ... [gratuitously reports to a law enforcement officer or agency ... false information relating to an actual offense....
N.Y. Penal Law § 240.50 (McKinney 2008). Similarly,
[a] person is guilty of offering a false instrument for filing in the second degree when, knowing that a written instrument contains a false statement or false information, he offers or presents it to a public office or public servant with the knowledge or belief that it will be filed with, registered or recorded in or otherwise become a part of the records of such public office or public servant.
N.Y. Penal Law § 175.30 (McKinney 2010). Indeed, as quoted in Part I.A1. above, the MPD Complaint Form signed by Jones warned that any false statement made on such a form would expose him to criminal liability under N.Y. Penal Law § 210.45, which provides that “[a] person is guilty of making a punishable false written statement when he knowingly makes a false statement, which he does not believe to be true, in a written instrament bearing a legally authorized form notice to the effect that false statements made therein are punishable.” The term “person” in such provisions plainly includes police officers. Cf. People v. Saporita,
Nor does anyone have authority to require a witness to retract his true statements and make statements that are false, for the persons who induce someone to commit a crime such as those described above are themselves guilty of that crime. See, e.g., 18 U.S.C. § 2(a) (“Whoever ... counsels, commands, induces or procures [the] commission [of an offense against the United States] is punishable as a principal.”); N.Y. Penal Law § 20.00 (McKinney 2009) (“When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the [requisite] mental culpability ..., he solicits, requests, commands, [or] importunes ... such person to engage in such conduct.”).
In Lewis, discussed in Part II.A. above, the plaintiff, head of the lottery unit of a state’s revenue division, contended that he was fired for refusing to testify dishonestly before the state’s Gaming Board with respect to proposed changes to a lottery game — a contention that initially gave us pause, see
We agree that Lewis had a strong First Amendment interest in testifying truthfully before the Board but we do not believe that interest to have been implicated here. Lewis was directed to present the Division’s views, not his own. Although Lewis understood [the] order [to present the proposed changes in a positive light] to mean that he should “lie” to the Board, there is no evidence that [the division’s executive director] or anyone else ordered Lewis to misrepresent either the facts or his personal views to the Board.
Id. at 166 (emphases added).
C. ladder's Refusals To Misrepresent the Events He Witnessed
In the present case, Jackler had a strong First Amendment interest in refusing to make a report that was dishonest. We think it clear that his refusals to change his statement as to what he witnessed when Metakes struck Jones were directed at a matter of public concern, rather than an effort to further some private interest of Jackler personally. The use of excessive force by a police officer is a matter of serious public concern for the reasons discussed in Part II.A. above. Metakes’s use of force against Jones did not implicate Jackler’s ability to do his own job properly, and the record contains no indication that Jackler had any personal interest in describing Metakes’s conduct. Rather, the pleadings indicated (1) that on the drive to the police station, when Jones attempted to complain to Jackler about Metakes’s punch, Jackler simply told Jones to raise the matter with Metakes (see Complaint Exhibit C); (2) that the first member of MPD to raise any question with respect to Jones’s injuries was the desk officer, Garretto, not Jackler (see Complaint Exhibit D); (3) that Jones, in his civilian complaint filed on the night of January 5, stated that Jackler had been a witness to Metakes’s punch (see Complaint Exhibit B); and (4) that it was not until January 11, after being instructed on Jan
We also think it clear that Jackler’s refusal to accede to defendants’ demands that he falsely exculpate Metakes has a civilian analogue. As indicated by the authorities discussed above, a citizen has a First Amendment right to decide what to say and what not to say, and, accordingly, the right to reject governmental efforts to require him to make statements he believes are false. Thus, a citizen who has truthfully reported a crime has the indisputable right to reject pressure from the police to have him rescind his accusation and falsely exculpate the accused. And, as indicated by laws such as the statutory provisions described in Part II.B. above, a civilian who acceded to such pressure would subject himself to criminal liability, as would a police officer. Of course a police officer has a duty not to substitute a falsehood for the truth, ie., a duty to tell “nothing but the truth”; but he plainly has that duty as a citizen as well.
As we indicated in Weintraub, an indicium that speech by a public employee has a civilian analogue is that the employee’s speech was to “ ‘an independent state agency’ ” responsible for entertaining complaints by “ ‘any citizen in a democratic society regardless of his status as a public employee,’ ”
Although defendants argue that Jackler’s refusals were part of his job and that Garcetti requires affirmance because otherwise any employee who simply files a truthful report could claim that his First Amendment rights were implicated because he did not file a false one, we reject that contention because it ignores the context of Jackler’s refusals. Jackler’s allegation — which must be accepted as true in the context of judgment on the pleadings — was that Rickard and Freeman, as directed by Chief Byrne, repeatedly attempted to force him to withdraw the truthful report he had filed and to submit one that was false. In the context of the demands that Jackler retract his truthful statements and make statements that were false, we conclude that his refusals to accede to those demands constituted speech activity that was significantly different from the mere filing of his initial Report.
In sum, it is clear that the First Amendment protects the rights of a citizen to refuse to retract a report to the police that he believes is true, to refuse to make a statement that he believes is false, and to refuse to engage in unlawful conduct by filing a false report with the police. We conclude that Jackler’s refusal to comply with orders to retract his truthful Report
D. Balancing MPD’s Interests Against Those of Jackler
Having concluded that Jaekler’s refusals to retract his truthful Report and make statements that would have been false constituted speech by Jackler as a citizen on a matter of public concern, and hence were within the scope of the First Amendment, we turn to the question of whether defendants can prove that they were nonetheless entitled to retaliate against Jackler in the interest of promoting efficient operation within MPD. Given that employees speaking as citizens about matters of public concern “must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively,” Garcetti,
The government as an employer has broad discretion to manage its operations. But that discretion does not include authority to coerce or intimidate its employees to engage in criminal conduct by filing reports that are false in order to conceal wrongdoing by another employee or to conceal eyewitness corroboration of civilian complaints of such wrongdoing. Thus, given that if “a number of such claims” are asserted, that very fact serves to “put the [police department] on notice” that an officer may be using excessive force, Fiacco,
If defendants are proven to have caused Jackler’s termination in retaliation for his refusal to retract his truthful Report and make false statements in order to conceal Metakes’s use of excessive force, their actions cannot be seen as promoting “integrity” in the discharge of MPD’s responsibilities, Connick,
E. Qualified Immunity
Qualified immunity, an affirmative defense as to which the defendants have the burden of proof, see, e.g., Gomez v. Toledo,
Thus, if the law was sufficiently “clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.” Harlow,
Defendants in the present case urge, as an alternative basis for affirmance, that they “be dismissed from this action” on the basis of qualified immunity (Defendants’ brief on appeal at 32). The district court did not decide the issue of qualified immunity, given defendants’ failure to raise that issue in their motion until their reply brief, see
First, all of the freedom-of-speech cases cited in Parts II.A. and B. above — except Garcetti and Weintraub- — had been decided before defendants retaliated against Jackler. Thus, in January 2006, when Jackler was terminated, it had been clearly established that the First Amendment protected a citizen’s decision both as to what to say and what not to say, and that it protected a government employee, including a police officer, speaking as a citizen on a matter of public concern, against retaliation for that speech except where the government’s interest in the agency’s proper functioning outweighed the employee’s First Amendment right. Several years before the events in the present case, we cited Pickering, Waters, Rankin, and Con-nick and stated that “[t]he employee’s right to be free from such retaliation has been clearly established since at least 1968.” Munafo v. Metropolitan Transportation Authority,
Second, although the district court stated that this Court’s decision in Fierro “would seem to require the conclusion that the defendants are qualifiedly immune here,”
Finally, because a claim asserted against a government official in his official capacity is essentially a claim against the governmental entity itself, the defense of qualified immunity, which may be available to individual defendants as they are sued in their individual capacities, is not applicable to claims against them in their official capacities. See generally Hafer v. Melo,
Jaekler’s complaint asserted claims against defendants in both their individual and official capacities. Thus, even if the court were eventually to determine that defendants are entitled to qualified immunity on the claims against them in their individual capacities, that determination would not entitle them to dismissal of the official-capacity claims. See generally Kentucky v. Graham,
CONCLUSION
We have considered all of defendants’ arguments in support of affirmance and have found them to be without merit. The judgment of the district court is vacated to the extent that it dismissed Jackler’s
Costs to plaintiff.
Concurrence Opinion
concurring:
I fully concur in Judge Kearse’s opinion for the panel. I write separately only to offer an observation as to one aspect of the panel opinion.
This case is about plaintiff Jason Jackler’s refusal to “make false statements in connection with an investigation into a civilian complaint alleging use of excessive force by a [Middletown Police] Department officer,” ante at 229, and the Town Board of Police Commissioners’ subsequent decision not to hire Jackler — then a probationary police officer — on a permanent basis. The Board allegedly acted at the behest of the defendant officials, who wished to punish Jackler for his refusal to falsify his previously filed report about alleged police misbehavior. In light of the fact that this litigation involves a refusal to speak falsely as directed by a public official, unlike the more common case, see id. at 237-38, where a public employee is sanctioned because he or she spoke in a manner of which government officials disapproved, see id., the panel opinion makes clear that the difference between the two is, for present purposes, immaterial. See id. at 238. I agree.
In support of that proposition, however, the panel quotes this statement by the United States Supreme Court in Riley v. National Federation of the Blind of North Carolina, Inc.,
There is certainly some difference between compelled speech and compelled silence, but in the context of protected speech, the difference is without constitutional significance, for the First Amendment guarantees “freedom of speech,” a term necessarily comprising the decision of both what to say and what not to say.
Id. at 796-97,
The Supreme Court made these statements, and the panel invokes them, in response to the argument that compelled speech may receive less protection under the First Amendment than does compelled silence. The panel’s conclusion otherwise does not, however, imply the converse conclusion that compelled speech can never receive more solicitude than compelled silence.
Justice Jackson, speaking for the Court, remarked some time ago that “[i]t would seem that involuntary affirmation could be commanded only on even more immediate and urgent grounds than silence.” W. Va. State Bd. of Educ. v. Barnette,
The Soviet purge trials of the 1930’s remain notorious in large measure because they were marked by “confessions ... made under pressure of intensive torture and intimidation,” 9 New Encyclopaedia Britannica Micropaedia 808 (15th ed.2002), available at http://www. britannica.com/EBchecked/topic/48S9S6/ purge-tñals (latest visit July 11, 2011). And it seems unlikely that Galileo’s dispute with Church authorities about Copernican theory, see Dava Sobel, Galileo’s Daughter 231-81 (1999); Jerome J. Lang-ford, Galileo, Science and the Church 152-54 (3d ed.1992), would be as infamous had he been forbidden to assert — as he apparently believed — that the earth moves about the sun, rather than forced to state publicly and contrary to his conviction that the sun revolves around the earth.
Notes
. Cf., e.g., Cacchillo v. Insmed, Inc.,
. See Recantation of Galileo (June 22, 1633), http://law2.umkc.edu/faculty/projects/ftrials/ galileo/recantation.html (latest visit July 19, 2011) (reproducing Galileo’s attestation from Giorgio de Santillana, The Crime of Galileo 312-13 (1955)).