March 2, 2015 4:45 pm

Appeals Court Reinstates Cop’s Whistleblower Suit

Punished for Quota Beef

By Mark Toor

Police Officer Craig Matthews complained to his precinct commanders about arrest quotas. They retaliated against him, he contends, handing him unpleasant assignments, denying him overtime and leave, separating him from his longtime partner, giving him poor evaluations and subjecting him to constant harassment and threats.

He sued the city, claiming that the retaliation violated his First Amendment right to free speech. A Federal Judge dismissed the suit, ruling that Mr. Matthews was not speaking as a citizen, which would have given him free-speech rights, but as a public employee whose speech was not protected by the Constitution.

Appeals Court Backs Him

But a three-Judge panel of the U.S. Court of Appeals for the Second Circuit ruled Feb. 26 that he was indeed speaking as a citizen and reinstated the suit.

Mr. Matthews, a 17-year NYPD veteran, told two successive commanders at the 42nd Precinct in The Bronx that the quotas were “causing unjustified stops, arrests, and summonses because police officers felt forced to abandon their discretion in order to meet their numbers,” according to the Judges’ opinion. He complained that the policy “was having an adverse effect on the precinct’s relationship with the community.”

Referring to previous decisions in such cases, the court wrote that “Matthews’s speech to the precinct’s leadership in this case was not what he was ‘employed to do,’ ...nor was it ‘part-and-parcel’ of his regular job...Matthews’s speech addressed a precinct-wide policy. Such policy was neither part of his job description nor part of the practical reality of his everyday work.”

The trial court bought the city’s argument that Mr. Matthews was reporting possible corruption, which according to the NYPD Patrol Guide is a part of his job, the appeals Judges said.

“Matthews admitted that he would have to report a police officer who violated the law, but this is not such a case,” according to the opinion. “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.”

Spoke As a Citizen

In going to his bosses, the Judges wrote, Mr. Matthews “chose a path that was available to ordinary citizens who are regularly provided the opportunity to raise issues with the precinct commanders.” The fact that he did this rather than using a remedy available only to officers, such as a union grievance or a complaint to the Internal Affairs Bureau, reinforces the concept that he was speaking as a citizen and not as a public employee, they concluded.

Christopher T. Dunn, associate legal director of the New York Civil Liberties Union, which represented Mr. Matthews, said, “Quotas lead to illegal arrests, criminal summonses and ruined lives. They undermine the trust between the police and the people they are supposed to be protecting and serving. Today’s decision protects the ability of police officers to speak out against this kind of misconduct when they see it.”

The city Department of Law said it was reviewing the decision and could not yet comment.

Lynch: Quotas Still Exist

Patrick J. Lynch, president of the Patrolmen’s Benevolent Association, applauded the decision. “New York City police officers have the same right and obligation to speak out against unjust or unfair policies as any other citizen,” he said in a statement. “This decision comes at an important time because despite management’s claim that they want quality not quantity, illegal quotas for police activities are, unfortunately, alive and well in the NYPD.”

But Roy Richter, president of the Captains’ Endowment Association, said the ruling could compromise the relationship between supervisors and rank-and-file officers.

“I am puzzled by this decision because it mischaracterizes the relationship between a commanding officer and a uniformed member under their direction as one more associated with a concerned citizen rather than the paramilitary structure currently in place,” he said in a statement. “I am reviewing the decision in greater detail with legal counsel to determine any impact on my membership.”