CRAIG MATTHEWS, Plaintiff-Appellant, v. CITY OF NEW YORK; RAYMOND KELLY, as Commissioner of the New York City Police Department; JON BLOCH, a deputy inspector in the New York City Police Department; and MARK SEDRAN, a lieutenant in the New York City Police Department, Defendants-Appellees.
No. 13-2915-cv
United States Court of Appeals For the Second Circuit
February 26, 2015
AUGUST TERM, 2013
ARGUED: APRIL 24, 2014
Before: WALKER and HALL, Circuit Judges, and MURTHA, District Judge.*
CHRISTOPHER DUNN, (Erin Harrist, Arthur Eisenberg, Alexis Karterton, on the brief), New York Civil Liberties Union Foundation, New York, N.Y., for Appellant.
MARTA ROSS, (Edward F.X. Hart, William S.J. Fraenkel, on the brief) for Zachary W. Carter, Corporation Counsel of the City of New York, New York, N.Y., for Defendants-Appellees.
JOHN M. WALKER, JR., Circuit Judge:
Officer Craig Matthews brought suit alleging that the City of New York retaliated against him for speaking to his commanding officers about an arrest quota policy at his precinct of the New York City Police Department (“NYPD“). The United States District Court for the Southern District of New York (Paul A. Engelmayer, Judge) granted the defendants’ motion for summary judgment, holding that Matthews spoke as a public employee, not as a citizen, and that his speech was thus not protected by the First Amendment. We conclude that because Matthews‘s comments on precinct policy did not fall within his official duties and because he elected a channel with a civilian analogue to pursue his complaint, he spoke as a citizen. Accordingly, we VACATE the district court‘s grant of summary judgment and REMAND for further proceedings consistent with this opinion.
BACKGROUND
I. Matthews‘s Speech about the Quota System
Since 1999, Craig Matthews, an NYPD police officer, has been assigned to the 42nd Precinct (“the Precinct“) in the Bronx. He alleges that starting in 2008, unnamed supervisors in the Precinct implemented a quota system mandating the number of arrests,
In February 2009, Matthews, believing that the quota system was damaging to the NYPD‘s core mission, reported its existence to then-Captain Timothy Bugge, the Precinct‘s commanding officer at that time. In March and April of 2009, Matthews again reported the quota system‘s existence to Captain Bugge, and, in May 2009, Matthews reported the same to an unnamed Precinct executive officer.
In January 2011, Matthews met with then-Captain Jon Bloch, the Precinct‘s new commanding officer, and two other officers in Captain Bloch‘s office. Matthews told them about the quota system and stated that it was “causing unjustified stops, arrests, and summonses because police officers felt forced to abandon their discretion in order to meet their numbers,” and that it “was having an adverse effect on the precinct‘s relationship with the community.” Compl. ¶ 28, Joint App‘x 28.
On February 28, 2012, Matthews filed a complaint under
On March 16, 2012, the defendants moved to dismiss, arguing that Matthews‘s speech was made pursuant to his official employment duties and was thus unprotected. The district court (Barbara S. Jones, Judge) granted the defendants’ motion to dismiss. See Matthews v. City of New York, No. 12 Civ. 1354, 2012 WL 8084831 (S.D.N.Y. Apr. 12, 2012). On November 28, 2012, a panel of this court vacated the dismissal and remanded, holding that “[t]he record in this case is not yet sufficiently developed . . . to determine as a matter of law whether Officer Matthews spoke pursuant to his
On remand, after the case was reassigned to District Judge Paul A. Engelmayer, the following evidence relevant to this appeal was developed in discovery.
III. Matthews‘s Employment Duties
Matthews stated in an affidavit that the vast majority of his time as a police officer is spent:
(1) going on radio runs, which are responses to 911 calls in the precinct, in addition to ‘311’ requests, and requests that come through the station house telephone switchboard, (2) patrolling the streets and vertical patrolling of local housing, (3) filling out complaint reports and additional forms relating to criminal activity, lost property, and missing persons, including interviewing witnesses, (4) responding to traffic accidents, (5) transporting prisoners to and from the precinct house, courts, and hospitals, and (6) doing community visits with local businesses and organizations.
Joint App‘x 91-92. Matthews‘s duties are formally defined by the NYPD Patrol Guide, which was created to serve as a “guide for ALL members of the service,” although it does not “contain distinct
All members of the service must be incorruptible. An honest member of the service will not tolerate members of the service who engage in corruption or other misconduct. All members of the service have an absolute duty to report any corruption or other misconduct, or allegation of corruption or other misconduct, of which they become aware.
Joint App‘x 36. The Patrol Guide defines corruption and other misconduct as, “[c]riminal activity or other misconduct of any kind including the use of excessive force or perjury that is committed by a member of the service whether on or off duty.” Id. It also outlines a procedure for officers to report misconduct to the Internal Affairs Bureau and provides that the “[f]ailure to report corruption, other misconduct, or allegations of such act is, in itself, an offense of serious misconduct and will be charged as such.” Id. at 37.
Commissioner John Beirne, Deputy Commissioner for Labor Relations for the NYPD, testified at deposition that a quota system alone is not misconduct but that a quota system that results in an
IV. Avenues for Civilian Complaints to the NYPD
Patrol Guide Section 202-09 states that one duty of a commanding officer in the NYPD is to “[m]aintain as much personal contact as possible with business, civic [organizations] . . . and other groups or media with community influence and interests to keep abreast of community tensions and trends.” Joint App‘x 209. In this spirit, the Precinct held monthly Community Council meetings in which the public was invited to raise concerns about policing practices. Captain Bloch testified that he routinely attended these meetings, missing fewer than four or five of the previous thirty.
In addition to the Community Council meetings, Captain Bugge testified that, one to three times per month, he met with members of the public, such as local politicians, church leaders, or
V. The Defendants’ Motion for Summary Judgment
On May 20, 2013, the defendants moved for summary judgment. On July 29, 2013, the district court granted the defendants’ motion. The district court held that Matthews‘s speech was made as an employee of the NYPD, not as a citizen, and thus was not protected by the First Amendment.
Matthews now appeals.
DISCUSSION
I. Standard of Review
We review a district court‘s grant of summary judgment de novo. Natural Res. Def. Council, Inc. v. U.S. Food and Drug Admin., 710 F.3d 71, 79 (2d Cir. 2013). Summary judgment is only appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
II. Legal Framework
A plaintiff asserting a First Amendment retaliation claim must establish that: “(1) his speech or conduct was protected by the First Amendment; (2) the defendant took an adverse action against him; and (3) there was a causal connection between this adverse action and the protected speech.” Cox v. Warwick Valley Cent. School Dist., 654 F.3d 267, 272 (2d Cir. 2011). The district court granted summary judgment to the defendants on the basis that Matthews‘s speech was not protected. We address only that issue.
A court conducts a two-step inquiry to determine whether a public employee‘s speech is protected: “The first requires determining whether the employee spoke as a citizen on a matter of
The district court determined that Matthews spoke on a matter of public concern and the defendants-appellees do not
III. The Citizen/Employee Distinction
The Supreme Court has recognized a tension in public employment free speech cases between an employee‘s First Amendment rights and the “common sense realization that government offices could not function if every employment decision became a constitutional matter.” Connick v. Myers, 461 U.S. 138, 143 (1983). “The problem in any case is to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters
Guided by the Supreme Court‘s decision in Garcetti, we ask two questions to determine whether a public employee speaks as a citizen: (A) did the speech fall outside of the employee‘s “official responsibilities,” and (B) does a civilian analogue exist? See Weintraub v. Bd. of Educ. of City Sch. Distr. of City of N.Y., 593 F.3d 196, 203-04 (2d Cir. 2010).
A. Official Duties
“[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes.” Garcetti, 547 U.S. at 421. Accordingly, we have held that speech is not protected if it is “part-and-parcel of [the employee‘s] concerns about his ability to properly execute his duties.” Weintraub, 593 F.3d at 203 (internal quotation marks omitted).
Similarly, in Ross v. Breslin, 693 F.3d 300 (2d Cir. 2012), we held that a payroll clerk‘s speech to her superiors about pay discrepancies was unprotected because it was part of her job responsibilities, which included “making sure pay rates were correct.” 693 F.3d at 306. We noted that the determination of “whether a public employee is speaking pursuant to her official duties is not susceptible to a brightline rule,” and that “[c]ourts must examine the nature of the plaintiff‘s job responsibilities, the nature of the speech,
In this case, Matthews reported the existence of the quota system on three occasions to Captain Bugge and on one occasion to an unnamed executive officer in the Precinct. Over a year later, after Captain Bloch had replaced Captain Bugge as the Precinct commanding officer, Matthews reported the quota system to him and stated that it was “causing unjustified stops, arrests, and summonses because police officers felt forced to abandon their discretion in order to meet their numbers” and it “was having an adverse effect on the precinct‘s relationship with the community.” Joint App‘x 28.
Matthews‘s speech to the Precinct‘s leadership in this case was not what he was “employed to do,” unlike the prosecutor‘s speech in Garcetti, nor was it “part-and-parcel” of his regular job, unlike the case of the teacher in Weintraub and the payroll clerk in Ross. Matthews‘s speech addressed a precinct-wide policy. Such policy-
We hold that when a public employee whose duties do not involve formulating, implementing, or providing feedback on a policy that implicates a matter of public concern engages in speech concerning that policy, and does so in a manner in which ordinary citizens would be expected to engage, he or she speaks as a citizen, not as a public employee.
The City points to Section 207-21 of the NYPD Patrol Guide, which, as noted earlier, states in pertinent part “[a]ll members of the service have an absolute duty to report any corruption or other misconduct, or allegation of corruption or other misconduct, of which they become aware.” Joint App‘x 36. It defines “corruption/other misconduct” as “[c]riminal activity or other misconduct of any kind including the use of excessive force or perjury that is committed by a member of the service whether on or
Matthews testified that he understood Section 207-21 to require only reports of misconduct rising to the level of a violation of penal law. Commissioner Beirne testified that the section requires reports of almost every violation of the Patrol Guide. Under either interpretation, however, the provision does not render Matthews‘s speech unprotected.
Matthews, in speaking out about the quota system, was not reporting suspected violations of law that might have required him to exercise his authority to arrest a fellow police officer or turn in an officer for breach of a protocol. Matthews admitted that he would have to report a police officer who violated the law, but this is not such a case. Here, Matthews was voicing concerns about broad policy issues that, at most, had the potential of incentivizing a violation of law; he was not identifying individual violations. Matthews told Captain Bloch that, as a result of the quota policy,
Even if Matthews‘s speech were deemed to fall within Section 207-21, this provision would not be determinative of whether that speech was protected by the First Amendment. If the Patrol Guide‘s general duty to report misconduct were permitted to control whether the speech of any employee—without regard to whether the investigation and reporting of misconduct is an integral part of the employee‘s day-to-day job (i.e. what he or she is “employed to
The existence of a comparable civilian analogue for Matthews‘s speech also supports our conclusion that he spoke as a citizen. Speech has a “relevant civilian analogue” if it is made through “channels available to citizens generally.” Jackler, 658 F.3d at 238. “[A]n 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.‘” Id. at 241 (quoting Weintraub, 593 F.3d at 204).
In Jackler, we held that a police officer‘s refusal to retract a truthful report to the police had a civilian analogue because a non-employee citizen may also refuse to retract a truthful police report. 658 F.3d at 241. In Weintraub, on the other hand, we found the teacher‘s speech unprotected in part because “lodging of a union grievance is not a form or channel of discourse available to non-employee citizens, as would be a letter to the editor or a complaint to an elected representative or inspector general.” 593 F.3d at 204.
Matthews chose a path that was available to ordinary citizens who are regularly provided the opportunity to raise issues with the Precinct commanders. Captain Bloch stated that he attended nearly every monthly Community Council meeting. And Captain Bugge testified that one to three times per month he met with members of the community to discuss issues in the Precinct. Matthews reported his concerns about the arrest quota system to the same officers who regularly heard civilian complaints about Precinct policing issues.
The district court found an absence of a civilian analogue because Matthews had better access to his commanding officers than would ordinary citizens. The district court noted that Matthews could speak to the officers “more readily, more frequently, and more privately than could an average citizen.” Matthews v. City of New York, 957 F. Supp. 2d. 442, 465 (S.D.N.Y. 2013). We do not consider
Here, Matthews pursued the same avenue to complain about a precinct-wide policy as would a concerned civilian. The channel Matthews chose to address his concerns about the quota system thus reinforces our conclusion that Matthews spoke as a citizen, not as a public employee.
CONCLUSION
For the reasons stated above, we VACATE the district court‘s grant of defendants’ motions for summary judgment and REMAND for further proceedings consistent with this opinion.