In a recent decision, Lefande v. District of Columbia, 2010 WL 2869765 (D.C. Cir. July 23, 2010), the U.S. Court of Appeals for the District of Columbia Circuit affirmed the protective scope of the First Amendment for law enforcement officers in a case that involved personnel issues. This topic is of primary importance to the law enforcement officers that I represent, especially those federal and District of Columbia police officers and supervisors that may need legal assistance and/or legal defense for having made statements on matters of importance which leads to retaliation and unwarranted discipline.
Background for the D.C. Police Officer’s First Amendment Lawsuit
In the Lefande case, the Appellant, was an unpaid volunteer reserve police officer with the District of Columbia Metropolitan Police Department (DC MPD). He was terminated from that position by the DC MPD because he gave an interview with a local newspaper, revealing a number of shortcomings within the administration of the DC MPD. As a result of the newspaper article, the officer was first given an official reprimand. Subsequently, the DC MPD refused to reinstate him until the officer brought suit against the department on the basis of First and Fourteenth Amendment violations. The lawsuit eventually resulted in a settlement and the officer’s return to duty, but that did not end the retaliation.
Subsequently, the DC MPD revamped their general orders a year later to provide the Chief of Police unchecked power (no administrative review) in which to terminate reserve officers. The Appellant, and 200 other affected reserve officers filed suit against the DC MPD to challenge these changes to the general orders. Then, one week prior to oral argument in the case, the officer was terminated by the Chief of Police.
The Appellant challenged his termination under the First Amendment, claiming that he was terminated as a result of his challenge to the new general order regulations. The Appellant filed suit in the U.S. District Court for the District of Columbia. The U.S. District Court dismissed the Appellant’s lawsuit because of the court’s belief that the retaliation alleged did not involve a matter of public concern. See Lefande v. District of Columbia, Civ. Action No. 09-217 (D.D.C. Feb. 4, 2009).
Appellant filed his appeal in this case with the U.S. Court of Appeals for the District of Columbia Circuit, who reversed the dismissal of the First Amendment retaliation lawsuit. In reversing the U.S. District Court, the D.C. Circuit explained the core issue involved for the police officer, that involving the issue of public concern. The D.C. Circuit held that “[i]f the speech is not on a matter of public concern, ‘the employee has not First Amendment cause of action based on his or her employment.’” The D.C. Circuit, in reversing the dismissal, reasoned that:
Lefande’s speech involved a General Order and an emergency rulemaking issued by the Chief of the MPD, which regulations, among other things, empowered the Chief to fire Reserve Corps members without process. According to Lefande, at the time of the Chief’s actions, District law prohibited their dismissal without cause or due process. Thus, Lefande maintained that, by asserting the power to fire Reserve Corps members without cause, and by restricting other aspects of the Corps authority and access to training, the Chief substantially altered the rights and role of the Entire Reserve Corps, whose stated mission-according to the General Order itself-is to “play an integral part in the [MPD's] endeavor to provide high quality police service.” MPD General Order 101.03 § II (emphasis added). Moreover, according to LeFande, the Chief made this change without providing the statutorily-mandated public notice and comment, in the absence of any enabling emergency.
The Court’s Ruling Upholding the Police Officer’s First Amendment Retaliation Claim
This, according to the D.C. Circuit was a matter of public concern for the police officers, holding that:
We believe LeFande's allegations of procedural irregularities that unquestionably affect an integral component of police service are “relevan[t] to the public's evaluation” of the MPD and its Chief. We think them more relevant than intra-office squabbles in Connick, 461 U.S. at 148, and Barnes, 840 F.2d at 982, and more public than the speech in Murray, 741 F.2d at 438. Presumably the public is, and should be, at least as concerned about these alleged defects as it was about, for instance, rule violations by a university athletic department, see Hall, 856 F.2d at 259, or teachers' dress and its purported relationship to the market for government debt, see Connick, 461 U.S. at 146 (citing Mt. Healthy, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)).
The D.C. Circuit, also offered additional rationale for dismissing the DC MPD’s contention that personnel matters involving police officers could not be brought as First Amendment cases:
Still, the District says LeFande's suit does not address a matter of public concern because its allegations relate to a mere “personnel matter.” But we reject the proposition that a personnel matter per se cannot be a matter of public concern, even if it may seriously affect the public welfare. For instance, were the Chief of Police to assert the power to fire, without process, all MPD officers, paid and unpaid, that action would “be fairly considered as relating to [a] matter of political, social, or other concern to the community,” Connick, 461 U.S. at 146, although it relates to a “personnel matter.” And, while this case may present a closer question, we conclude that LeFande's speech-alleging the Chief of Police violated District law and the Constitution by significantly altering the framework by which the Reserve Corps was governed, relying in part on an emergency procedure when there was no emergency-also implicates a “matter of political, social, or other concern to the community.” Id.; see Hall, 856 F.2d at 259. It exceeds “individual personnel disputes and grievances” and involves “issues about which information is needed or appropriate to enable the members of society to make informed decisions about the operation of their government.” Hall, 856 F.2d at 259 (quoting McKinley, 705 F.2d at 1114) (internal quotations and citations omitted). In short, it relates to a matter of public concern. See id.; see also Jason Cherkis, Anger in Reserve, Washington City Paper, Jul. 19, 2006, available at http://www. washingtoncitypa-per.com/blogs/citydesk/2006/07/19/anger-in-reserve (elimination of Reserve Corps members' job security led them to “cut back on volunteering,” which “hit hard on July 4, when the department fielded only a fraction of its reserve phalanx”).
The Impact for Future Police Officer First Amendment Defenses
What does this holding mean for police officers? I think it has the potential to have a major impact, and certainly may have one for police officers in the District of Columbia and those federal law enforcement officers located within the jurisdiction of the U.S. Court of Appeals for the D.C. Circuit (i.e. those located in Washington, D.C.). Having represented a number of police officers in defensive matters involving statements or speech made in any number of situations while at work, I believe that this will be an extremely helpful case to use in the legal defense of police officers and supervisors. Ironically, because the DC MPD contested the lawsuit on the basis that personnel matters involving police officers, per se, could not be matters of public concern (and lost), this opens the door to additional similar types of lawsuits of this nature in the future. As a result of Lefande, I believe that there could be any number of First Amendment defenses made in the context of personnel situations now that the D.C. Circuit has established that these types of cases can in fact establish a First Amendment violation. This type of case also does a lot to affirm the principles of Pickering v. Board of Education, 391 U.S. 568 (1968), one of the central cases for public employee First Amendment defenses.