Saturday, April 18, 2009


This blog turned seven (7) years old today.

Friday, April 03, 2009

Fourth Circuit reinstates police officer's 1st Amendment retaliation case

In Andrew v. Clark, No. 07-1184 (April 2, 2009) (PDF), the Fourth Circuit reinstated a First Amendment retaliation case brought by a police officer who claims he was fired for releasing an internal police memorandum to the newspaper.

Andrew wrote an internal memorandum requesting that an investigation be conducted to determine whether the use of deadly force by a tactical unit against a barricaded suspect was justified and properly conducted. When the memorandum was ignored, Andrew released it to the Baltimore Sun. He was later terminated, and claims that his First Amendment rights were violated.

The district court concluded that Andrew’s memorandum was not protected by the First Amendment under Garcetti v. Ceballos, 547 U.S. 410 (2006), because it was written as part of Andrew's official duties. See Garcetti, 547 U.S. at 424 ("[w]hen public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes and therefore are not insulated from ‘managerial discipline’ based on such statements.")

On appeal, the Fourth Circuit vacated the dismissal of the complaint, finding that "the question whether the Andrew Memorandum was written as part of his official duties was a disputed issue of material fact that cannot be decided on a motion to dismiss pursuant to Rule 12(b)(6)." Andrew had alleged that (1) he had not previously written similar memoranda after other officer-involved shootings; (2) that he would not have been derelict in his duties or suffered any employment consequences had he not written the memorandum; (3) that his superiors characterized the memorandum as "unauthorized"; and (4) that the task of investigating officer-involved shootings falls upon the Homicide Unit and the Internal Affairs Division, of which he was not a part.

Summary Judgment Standard

Later in the opinion, the Court discussed whether Andrew's motion for partial summary judgment was properly denied, even though it was unopposed. The Court found that under the 2007 amendment to Rule 56(e)(2), the district court did have the discretion to deny the motion:

The Advisory Committee Notes to Rule 56 highlight that the language was amended from the stricter "shall [if appropriate]" language to the more discretionary "should [if appropriate]" language. See Fed. R. Civ. P. R. 56(e) (2007 Amendments). The Advisory Committee Notes also highlight the discretion that district courts are given to deny summary judgment motions even when the standard appears to have been met.

Accordingly, given: (1) the discretion accorded district courts in deciding whether or not to grant motions for summary judgment; (2) the apparent disputed facts regarding the nature of Andrew’s speech, highlighted in the above discussion; and (3) the lack of a developed record at this stage in proceedings, we conclude that the district court did not abuse its discretion in denying Andrew’s motion for partial summary judgment.
How many of you are still stating the mandatory language in your motions?

Judge Wilkinson's Concurrence

Judge Wilkinson's concurring opinion is also worth a read. He discusses how the tanking economy is causing investigative journalism to wither, and how critically important inside sources like Michael Andrew are in exposing "the inner workings of massive public bureaucracies charged with major public responsibilities."

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