Several police officers from Bishop, California, who alleged they were retaliated against after publishing a no-confidence letter against the former police chief had their First Amendment claims survive a motion to dismiss. A federal district court ruled April 3, 2018, in Rossy v. City of Bishop that the officers engaged more in private citizen speech than in public employee speech that falls under the restrictive categorical rule established by the U.S. Supreme Court in Garcetti v. Ceballos.
Officer Bryan Rossy was the President of the Bishop Police Officers Association and the other plaintiffs – Jared Waasdorp, Douglas Mairs, and Mark Gutierrez – were fellow police officers and members of the Association.
The plaintiffs published a no confidence letter against the then police chief Chris Carter in September 2015. They accused the chief of fostering an environment of corruption and cronyism that had a detrimental impact on recruiting and even safety.
Within a month of the letter, officials in the department placed the plaintiffs on administrative leave. The plaintiffs later received a letter of intent to discipline from the next police chief. In September 2017, the plaintiffs sued in federal court, contending that they faced retaliation for their protected speech.
The defendants countered that the no-confidence letter was speech pursuant to the plaintiff’s official duties and, therefore, not protected speech under Garcetti. The Supreme Court in Garcetti created a categorical rule that public employees have no free-speech protection for official, job-duty speech. The defendants in the Rossy case argued that officers have a duty to report corruption and, thus, the no-confidence letter was a form of speech not protected by the First Amendment.
U.S. District Court Judge Lawrence J. O’Neill rejected that argument by the Defendants and allowed the lawsuit to proceed, writing: “this Court finds that drafting and publishing the No Confidence Letter was outside the scope of normal police officer functions.”
The judge also explained that the no confidence letter was “addressed to a number of outside agencies” and, thus, went well beyond the plaintiff’s chain of command.
This decision is a welcomed ruling for those concerned about Garcetti’s corrosive impact on public employee’s First Amendment decisions.
– David L. Hudson, Jr. is a First Amendment expert who is the author of First Amendment: Freedom of Speech (Thomson Reuters, 2012) and many other books on the First Amendment.