New York Times
Feb. 26, 2015


Appellate Ruling Supports a Police Whistle-Blower in New York

By TANZINA VEGA

In a free-speech case that could bolster whistle-blowers, a federal appeals court ruled on Thursday in favor of a New York City police officer who said his commanders retaliated against him after he complained to them about what he believed to be a quota system that resulted in unjustified stops and arrests.

The officer, Craig Matthews, had argued that his First Amendment right to free speech was violated by his superiors’ retaliatory actions, and the three-judge panel of the United States Court of Appeals for the Second Circuit sided with him, overturning a lower-court ruling that Officer Matthews’s statements were part of his work duties and therefore were not protected speech.

In an opinion, Judge John M. Walker Jr. said Officer Matthews spoke as a citizen, not a public employee, when he expressed concern to supervisors about pressure officers in his Bronx precinct felt to comply with a quota system that mandated the numbers of arrests, summonses and stop-and-frisk encounters expected of officers.

Officer Matthews, a 17-year veteran who was assigned to the 42nd Precinct, said that after speaking to his supervisors about his concerns, he was given undesirable assignments and poor performance reviews and was denied overtime and leave.

The panel’s decision in his favor was unanimous, with Judges Peter W. Hall and J. Garvan Murtha joining in the opinion. It relied in part on the judges’ reading of the New York Police Department’s Patrol Guide.

While officers are obligated to report official misconduct by fellow officers, the appellate judges determined that Officer Matthews’s comments to his superiors did not fall under that obligation. Rather, the judges found, Officer Matthews was raising broader policy concerns, as any concerned citizen might. And in going to the commanders, he was using a channel available to any citizen through public precinct community meetings, Judge Walker found.

“Matthews’s speech addressed a precinctwide policy,” the judge wrote. “Such policy-oriented speech was neither part of his job description nor part of the practical reality of his everyday work.”

That, the judges said, brought his statements under the shield of the First Amendment.

Christopher T. Dunn, the associate legal director of the New York Civil Liberties Union, which represented Officer Matthews, said in a statement that the decision “protects the ability of police officers to speak out against this kind of misconduct.”

“New York City’s finest should be applauded when they expose abuse, not abused and retaliated against,” Mr. Dunn added.

He said the case would now return to the District Court for trial.

But the decision could present a challenge for the Police Department, particularly its commanders, as they try to determine what sort of challenges are permissible and which are not.

Roy T. Richter, president of the Captains Endowment Association, which represents many supervisors, said in a statement that the court decision altered the lines of authority inherent in any police department.

“I am puzzled by this decision,” Mr. Richter said, “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.”

But Patrick J. Lynch, the president of the Patrolmen’s Benevolent Association, the largest police union, said he supported the court ruling. “New York City police officers have the same right and obligation to speak out against unjust or unfair policies as any other citizen,” Mr. Lynch 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 N.Y.P.D.”

Nicholas Paolucci, a spokesman for the Law Department, said the city would review the decision, but he declined to comment further.

A version of this article appears in print on February 27, 2015, on page A23 of the New York edition with the headline: Appellate Ruling Supports a Police Whistle-Blower.