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.      

         

         

 

         

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Photo of Frank M. Crivelli Frank M. Crivelli

Frank M. Crivelli’s practice revolves around the representation of over eighty-five (85) labor unions in various capacities, the majority of which bargain for law enforcement entities. He is proud to be called on a daily basis to provide counsel to over 12,000 state…

Frank M. Crivelli’s practice revolves around the representation of over eighty-five (85) labor unions in various capacities, the majority of which bargain for law enforcement entities. He is proud to be called on a daily basis to provide counsel to over 12,000 state, county and local law enforcement officers, firefighters and EMS workers.

Mr. Crivelli specializes his individual practice in collective negotiations.  Over the past twenty (20) years, Mr. Crivelli has negotiated well over one hundred (100) collective bargaining agreements for various state, county, municipal and private organizations and has resolved over thirty-five (35) labor agreements that have reached impasse through compulsory interest arbitration.  Mr. Crivelli routinely litigates matters in front of the New Jersey State Public Employment Relations Commission, the New Jersey Office of Administrative Law, third party neutrals for mediation, grievance and interest arbitration, the Superior Court of New Jersey and the United States District Court for the District of New Jersey.

Mr. Crivelli founded and created the New Jersey Public Safety Officers Law Blog (www.njpublicsafetyofficers.com) approximately fifteen (15) years ago where he and members of his firm routinely publish blog posts regarding legal issues related to the employment of New Jersey Public Safety Officers.  The blog now contains over six hundred (600) articles and is reviewed and relied upon by thousands of public employees.  Mr. Crivelli has also published books and manuals pertaining to New Jersey Public Employee Disability Pension Appeals and the New Jersey Worker’s Compensation System. Currently, he is drafting a publication on how to Prepare and Negotiate a Collective Bargaining Agreement.  He lectures annually at the New Jersey State PBA Collective Bargaining Seminar, the National Association of Police Organization’s Legal Seminar, the New Jersey Public Employment Relations Commission Seminar on Public Employment Labor Law, the United States Marine Corps’ Commander’s Media Training Symposium and to Union Executive Boards and General Membership bodies on various labor related topics.

Prior to entering private practice, Mr. Crivelli joined the United States Marine Corps where he served as a Judge Advocate with the Legal Services Support Section of the First Force Services Support Group in Camp Pendleton, California.  While serving in the Marine Corps, Mr. Crivelli defended and prosecuted hundreds of Special and General Court Martial cases and administrative separation matters.  In addition to his trial duties, Mr. Crivelli was also charged with the responsibility of training various Marine and Naval combat command elements on the interpretation and implementation of the rules of engagement for various military conflicts that were ongoing throughout the world at that time. After leaving active duty, Mr. Crivelli remained in the Marine Corps Reserves where he was promoted to the rank of Major before leaving the service.

For the past fifteen (15) years, Mr. Crivelli has been certified as a Civil Trial Attorney by the Supreme Court for the State of New Jersey, a certification which less than two percent (2%) of the attorneys in New Jersey have achieved.  He is a graduate of Washington College (B.A.), the City University of New York School of Law (J.D.), the United States Naval Justice School, and the Harvard Law School Program on Negotiation.