Opinion
CIVIL ACTION NO. 02-CV-11540-RGS.
March 30, 2007
MEMORANDUM AND ORDER ON DEFENDANT PAUL EVANS' RENEWED MOTION FOR JUDGMENT ON THE BASIS OF QUALIFIED IMMUNITY [DOCKET # 100]
This renewed motion for a grant of qualified immunity was prompted by the Supreme Court's decision in Garcetti v. Ceballos, ___ U.S. ___, 126 S. Ct. 1951 (2006), a case that was decided after the jury rendered a verdict against former Boston Police Commissioner Paul Evans and in favor of plaintiff William Broderick. Broderick, a discharged police captain, was the longtime President of the Boston Police Superior Officers Federation. Broderick had a long and fractious relationship with Evans and other high-ranking police officials. At the time Evans terminated him, Broderick was the Boston Police Supervisor of Cases at the Suffolk Superior Court.
The jury found against Evans on two separate claims. First, it found that Evans had violated Broderick's First Amendment right to free speech by retaliating against Broderick for his outspoken complaints to superiors about alleged abuses of overtime pay by Boston police officers on court assignments. Second, it found that Evans had violated Broderick's First Amendment rights by retaliating against him for filing a lawsuit objecting to Evans' imposition of various disciplinary penalties related to that speech. The jury also found the City of Boston liable to Broderick under the state "Whistleblower Statute," G.L. c. 149, § 185, for Evans' acts of retaliation.
A tripartite test is applied in analyzing claims of qualified immunity and a prescribed sequence is followed. The court "must first determine whether the plaintiff has alleged a deprivation of an actual constitutional right at all," before considering whether that right was clearly established and would have been recognized as such by a reasonable officer when the constitutional violation occurred. Conn v. Gabbert, 526 U.S. 286, 290 (1999). Stated differently, the "threshold" question that must be answered is this: "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? . . . If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Saucier v. Katz, 533 U.S. 194, 201 (2001). "Deciding the constitutional question before addressing the qualified immunity question . . . promotes clarity in the legal standards for official conduct, to the benefit of both the officers and the general public." Wilson v. Layne, 526 U.S. 603, 609 (1999).
Garcetti represents something of a sea change in First Amendment law governing employee speech. Garcetti holds that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Id. at 1960. Thus,
[r]estricting speech that owes its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created. . . . When an employee speaks as a citizen addressing a matter of public concern, the First Amendment requires a delicate balancing of the competing interests surrounding the speech and its consequences. When, however, the employee is simply performing his or her job duties, there is no warrant for a similar degree of scrutiny. To hold otherwise would be to demand permanent judicial intervention in the conduct of governmental operations to a degree inconsistent with sound principles of federalism and the separation of powers.Id. at 1960-1961.
With respect to Broderick's free speech claim, the court instructed the jury as follows:
Mr. Broderick alleges that Commissioner Evans punished him for exercising his rights under the First Amendment. Mr. Broderick has the initial burden of showing that he engaged in speech that is in fact constitutionally protected and that his protected speech was a substantial and motivating factor in the decision of Commissioner Evans to take disciplinary action against him.
To be protected, an employee's speech must involve matters of legitimate public concern and not merely matters of private grievance. The employee's interest in being heard must also not be outweighed by the government's interest as an employer in promoting the efficient delivery of its services. In the context of this case, speech involving matters going to the heart of the governance of the Boston Police Department, such as the alleged abuse by officers of overtime pay, raises a matter of public concern that would fall within the protection of the First Amendment.
In the retrospective light of Garcetti, it is clear that this instruction is an incorrect statement of the law. Broderick's complaints to his superiors about perceived abuses of overtime pay by fellow officers, while they involved a matter of public concern, did not amount to protected speech under the holding inGarcetti. The statements were made in the discharge of Broderick's duties as the Supervisor of Cases in the Suffolk Court. Thus, his case is indistinguishable from that of Ceballos, the deputy district attorney in Garacetti.
The controlling factor in Ceballos' case is that his expressions were made pursuant to his duties as a calendar deputy. That consideration — the fact that Ceballos spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case — distinguishes Ceballos' case from those in which the First Amendment provides protection against discipline.Id. at 1959-1960 (internal citation omitted). On the protected speech claim, Evans is therefore entitled to a grant of qualified immunity and the jury's answer to Question 1 of the verdict slip will be vacated.
Three was no evidence that Evans defined Brodericks' job duties in an excessively broad manner in an attempt to restrict his right to speak openly on matters of public concern. See Garcetti, 126 S. Ct. at 1961.
That does not, however, end the matter. The jury was also instructed that while an employee cannot insulate himself from legitimate disciplinary measures by filing lawsuits, the First Amendment "protects the right of a person who believes himself to have been treated in a discriminatory manner by his employer to petition the courts for relief without fear of retaliation." The court cautioned the jury that it must take care to "distinguish disciplinary actions taken for legitimate reasons from any that you find were imposed in retaliation for Mr. Broderick's exercise of his First Amendment rights." The jury in answering Question 2 of the verdict slip found that Commissioner Evans had retaliated against Broderick for filing a lawsuit protesting, among other disciplinary sanctions, an order that he submit to a psychiatric examination. The right to petition the courts or other government agencies for redress of even imaginary grievances without fear of retaliation is one of the fundamental guarantees of the First Amendment. See Smith v. Arkansas State Highway Emp., Local 1315, 441 U.S. 463, 465 (1979) citing Pickering v. State Board of Education, 391 U.S. 563, 574-575 (1968) ("The public employee surely can associate, and speak freely and petition openly, and he is protected by the First Amendment from retaliation for doing so."). Evans makes no persuasive argument that Garcetti did anything to alter the legal landscape in this respect.
The only case on this point cited by Commissioner Evans, Boyle v. Burke, 925 F.2d 497 (1st Cir. 1991), does not go so far to say (as defendant characterizes it) that retaliation for filing a lawsuit in protest of personal discipline is not actionable under the First Amendment. In fact, given the state of the record, the Court in Boyle stated that it was unable to resolve the issue without a fuller account of "the nature of the alleged retaliatory conduct." Id. at 506. It must also be noted that even if the Commissioner were to be granted qualified immunity on both of the claims for which he was found personally liable, it would make no difference in the outcome of the case as the jury found against the City of Boston on the Whistleblower Statute claim for the same conduct by the Commissioner and awarded duplicative damages. Because a municipality has no claim to immunity, Owen v. City of Independence, 445 U.S. 622, 657 (1980), it may be held liable for "the actions of lower-level officers who themselves are entitled to qualified immunity." Joyce v. Town of Tewksbury, 112 F.3d 19, 23 (1st Cir. 1997) (en banc).
ORDER
For the foregoing reasons, Commissioner Evans' motion for a grant of qualified immunity is ALLOWED as to the protected speech claim and DENIED as to the right of petition/retaliation claim.SO ORDERED.