In the case Reilly v. City of Atlantic City, 06-2591, the United States Court of Appeals for the Third Circuit held that a police officer’s testimony in a police corruption case is protected speech and his superiors are not entitled to qualified immunity regarding his retaliation claim.
Appellee, Robert Reilly, a former Atlantic City police officer, filed suit against Robert Flipping, the Director of Public Safety, and Arthur Snellbaker, the Chief of Police, claiming that they retaliated against him for his participation, including trial testimony, in an investigation into police corruption a decade earlier. The alleged retaliation involved defendants formally recommending Reilly be demoted and suspended for 90 days, despite, after an extensive investigation, an independent hearing officer’s recommendation that Reilly serve a four day suspension for violating police department regulations.
Reilly accepted Flipping’s offer that he retire instead of being disciplined. Thereafter, Reilly filed this action alleging defendants’ actions violated his First Amendment free speech rights and Fourteenth Amendment right to procedural due process. The District Court denied defendants’ motion for summary judgment on the procedural due process claim, thereby declining to grant them qualified immunity. The Court also denied their motion for summary judgment on the First Amendment retaliation claim. This appeal followed.
The Third Circuit indicated that determining whether a public official is entitled to qualified immunity involves a two-step analysis. First, the court must decide whether a constitutional right would have been violated on the facts alleged and, if so, whether the right was clearly established. If the answer to the latter is “yes,” the defendant is not entitled to qualified immunity.
In analyzing whether Reilly had the claimed First Amendment right, the Third Circuit cited Garcetti v. Ceballos, 547 U.S. 410 (2006), which distinguished between employee speech and citizen speech and held that the First Amendment does not prohibit managerial discipline based on an employee’s expressions made pursuant to official responsibilities. Defendants argued under Garcetti they are entitled to qualified immunity on Reilly’s First Amendment claim because his testimony was made pursuant to his official duties and, thus, not protected by the First Amendment.
In rejecting this argument, the Third Circuit noted: (1) every citizen owes the duty of giving testimony to aid in the enforcement of the law; (2) the overwhelming weight of authority concludes that an employee’s truthful testimony is protected by the First Amendment; and (3) there is a need to protect the integrity of the judicial process. Therefore, the Court concluded that the fact that Reilly’s official duties provided the impetus to appear in court is immaterial to his independent obligation as a citizen to testify truthfully. Reilly’s testimony constituted citizen speech and his claim is not foreclosed by the “official duties” doctrine announced in Garcetti and, as a result, defendants are not entitled to qualified immunity.
This case has significance for any public safety officer who is called to testimony in a matter related to his official duties. Public safety officers, as with other citizens, have an obligation to testify truthfully in a court proceeding not only to preserve the integrity of the judicial process, but to ensure just enforcement the law. More importantly, however, this case illustrates that an officer’s superiors who retaliate against him/her will not be entitled to qualified immunity in a subsequent civil suit.
