Rights for Police Brutality Whistleblowers. What laws protect me from retaliation for reporting misconduct within my department?
As a state or municipal police officer, you have two types of protection from retaliation for blowing the whistle on misconduct in your department: The First Amendment and your state’s whistleblower laws.
After the Supreme Court’s disastrous Garcetti v. Ceballos decision in 2006, the First Amendment only applies to disclosures made outside your chain of command. State laws may fill the gap in coverage left by the First Amendment, protecting your right to report misconduct internally. Still, these laws vary drastically and have very particular requirements as to how you blow the whistle. Therefore, in order to be protected, it is essential to check your state and local laws and consult experts in your area.
Am I protected for reporting misconduct to my supervisors and other persons within my chain of command?
In short, probably not. Before the Supreme Court’s Garcetti decision in 2006, your right to report misconduct internally was protected under the First Amendment by Pickering v. Board of Education. To decide whether you were protected from retaliation for your disclosure, a court would balance the public’s interest in being apprised of government misconduct, your interest in free speech, and your employer’s interest in effectively managing the workplace.
That all changed with Garcetti when the Supreme Court held that First Amendment protection is only available when discussing misconduct as a citizen as opposed to a public employee. To make this determination, courts will assess whether you were speaking “pursuant to your official duties” as a police officer. Unfortunately, for reasons of confidentiality and social cohesion, reporting misconduct internally is a standard component of a police officer’s duties, as in other quasi-military organizations, and therefore usually unprotected by the First Amendment.
However, you can count on First Amendment protection for internal reporting if your “official duty” is criminal. In Jackler v. Byrne, for example, the Second Circuit concluded that a supervisor’s instruction to falsify a report regarding another officer’s misconduct could not qualify as an “official duty.” The officer was therefore protected from retaliation as a private citizen rather than a public employee. But if your duty is anything short of criminal, do not count on First Amendment coverage. In Davis v. Chicago, for example, Lorenzo Davis refused to alter police misconduct reports to reflect more favorably on the implicated officers. Davis was denied First Amendment protection from retaliation since reframing the reports was not criminal, even if unethical.
But while Davis was not protected under the First Amendment, he would go on to win almost $3 million under Illinois’ whistleblower statute. Indeed, where you are not protected under the First Amendment, you may be protected under state law. However, these laws vary drastically. Many have substantial gaps in coverage: some do not cover municipal employees, and others have very technical requirements like making the report under oath (Alabama) or to an elected official (Delaware). But as Davis’ case demonstrates, officers who report internally have the potential to win big under state whistleblower laws, even if they lack First Amendment protection.
The answer to this question is, unfortunately: maybe. The Supreme Court’s 2006 Garcetti decision severely limited your ability to report misconduct internally by excluding disclosures made “pursuant to official duties” from First Amendment coverage. However, most courts will recognize your right to report misconduct to officials outside your department, since such disclosures are not usually part of your duties as a police officer.
For example, police officers were protected for reporting misconduct to the FBI, but they were denied protection for making the same report to their supervisors in Spalding v. Chicago. Officers were also protected for reporting misconduct to their unions and internal affairs departments, but not for reporting the same misconduct to their superiors in Dahlia v. Rodriguez.
However, some courts may consider external reports “pursuant to official duties” if your department’s policy grants officers the authority to make external disclosures. For example, a police officer who reported misconduct to a local prosecutor was unprotected since his department’s policy required officers to report crimes and because the disclosure was made during an on-duty meeting to discuss other matters. Morales v. Jones. Similarly, in the Supreme Court’s 2014 decision Lane v. Franks, its only elaboration on Garcetti, Justice Clarence Thomas affirmed this position in suggesting that certain public employees, like police officers, may be required to testify in court as part of their job and therefore lose First Amendment protection.
But keep in mind that, pursuant to Garcetti, employers may not “restrict employees’ rights by creating excessively broad job descriptions.” For example, in Hunter v. Mocksville, three officers sought First Amendment protection after they were fired for reporting their superior’s criminal misconduct to the governor. The superior argued that reporting criminal conduct was part of the officers’ job description and thus unprotected speech. The court rejected this argument in holding a “general duty to enforce criminal laws” is too broad so as to encompass calling the governor’s office.
Furthermore, Lane explained that “speech that simply relates to public employment or concerns information learned in the course of public employment” is not restricted by Garcetti. So, where you learn of misconduct on the job, reporting that misconduct to outside authorities is afforded First Amendment protection unless (1) your department requires disclosure to that authority, and (2) that requirement is not excessively broad.
It is also very important to note that, even if your disclosure is protected under the Garcetti/Lane framework, it will still need to pass the Pickering test which balances your interests, your employer’s interests, and the public’s interests in deciding whether you are protected from retaliation for your disclosure.
Given the complex nature of when a report is protected, it is advisable to consult an attorney prior to any external disclosure.
What types of remedies can I expect if I am fired, demoted, or otherwise retaliated against for blowing the whistle on misconduct in my department?
The Civil Rights Act of 1871, codified at 42 U.S.C 1983, creates the cause of action for public employee whistleblowers, meaning you can sue a government employer for retaliation. Even better, 42 U.S.C 1983 entitles prevailing parties to injunctive relief like reinstatement and all economic damages as well as compensatory and punitive damages. See Swartzwedler v. McNeilly, Carey v. Piphus. Prevailing officers can also require the defendants to pay attorney’s fees and costs. See Civil Rights Attorney Fee Act, 42 U.S.C. § 1988. In Oregon, for example, a public safety officer won over $750,000 in a First Amendment suit after he was retaliated against for exposing wrongdoing. In Maryland, a deputy sheriff was awarded $1.1 million for suffering First Amendment retaliation after he was fired for exposing his superiors’ instructions to lie under oath.
Furthermore, although access to First Amendment protection was drastically curtailed by Garcetti, state laws can also produce sizeable rewards and restitution for whistleblowing cops. These remedies are defined by state law and thus vary substantially, but officers have won big under them all the way from Idaho to Florida:
Under Illinois’ Whistleblower Act, an employee of Chicago’s police oversight agency won $2.8 million after he was fired for refusing to change findings in his report regarding a police shooting. Two Chicago officers settled for $2 million after alleging First Amendment and Whistleblower Act violations for retaliation they suffered after helping investigate corrupt officers in their department.
An Idaho officer settled his case under the Idaho Protection of Public Employees Act for $1.29 million after he was retaliated against for testifying against another officer.
A New Jersey officer settled his case under New Jersey’s Conscientious Employees Protection Act for $450,000 after he was retaliated against for reporting his department’s failure to adhere to training guidelines to his supervisors. Another municipal officer won $1.7 million under the Act on account of retaliation he suffered after blowing the whistle about his extra-duty jobs.
Under Kentucky’s Whistleblower Act, a Louisville officer was awarded $300,000 after he was demoted for reporting mismanagement in his department to the mayor.
Under New Mexico’s Whistleblower Protection Act, an Albuquerque officer won over $200,000 after he was retaliated against for exposing his department’s failure to properly investigate reports of child abuse.
A police detective who was retaliated against for reporting his department’s failure to protect the privacy of sex crimes victims to his union settled under Florida’s Whistle-blower’s Act for $155,000.
Under the Minnesota Whistleblower Act, an officer won over $150,000 and over $300,000 in attorneys’ fees after he was suspended and blacklisted for reporting inappropriate behavior by his colleague.
Does qualified immunity protect my supervisors for retaliating against me?
Maybe. Sovereign immunity protects states from suit in federal court except in the rare circumstance that the state waives their immunity or Congress abrogates it. Thus, it is best to directly name the officials who were involved in the retaliation, and their entire chain of command, as defendants in a § 1983 retaliation lawsuit.
However, government officials still enjoy qualified immunity and are only liable for money damages when (1) the official violated a statutory or constitutional right and (2) the right was clearly established at the time of the challenged conduct. Ashcroft v. al-Kidd. While there is still ample grey area as to when police officers enjoy First Amendment protection from retaliation, the law is certainly more settled than in 2006 (when Garcetti was decided) and, under the right factual circumstances, it has been considered sufficiently “established” for the purposes of defeating qualified immunity.
What laws are “clearly established” is fact specific, constantly evolving, and varies by circuit. In the Fourth Circuit, it is clearly established law that police officers may speak out about a department’s efforts to cover up an incident of excessive force. Durham v. Jones. It was also clearly established in Mocksville, that local police officers may report their superiors’ alleged corruption to state law enforcement. But whether the First Amendment protects unauthorized disclosures to private citizens, when speaking in an ambiguous capacity, was not sufficiently “established” so as to defeat qualified immunity. Crouse v. Town of Moncks Corner.
The only appellate court to consider a facial challenge to a blanket gag policy on law enforcement upheld the lower court’s conclusion that, in light of Lane’s guidance regarding the special value of public employee speech, the policy infringed on “clearly established” First Amendment case law. Moonin v. Tice.
Given the variability of case law regarding First Amendment retaliation, you should consult an attorney to determine whether your supervisors violated “clearly established” law in your circuit.
Why should I blow the whistle?
The code of silence and culture of insularity within police departments is especially well-documented and among the most pervasive in the world today. Therefore, any step you take to expose misconduct within your department demonstrates the utmost courage and a commitment to justice. It also serves as a direct rebuke of excessive government censorship.
But beyond your potential to make real positive change in your coworkers’ lives and the citizens you vowed to protect, massive rewards and restitution for your sacrifice are possible under the right circumstances.
As the Supreme Court indicated in Lane: “speech by public employees on subject matter related to their employment holds special value precisely because those employees gain knowledge of matters of public concern through their employment.” You are in a unique position to identify government wrongdoing and, therefore, best situated to expose it.
Both the political right and left recognize the importance of protecting and encouraging law enforcement whistleblowers. Ensure public safety and create a healthier work environment for you and co-workers by consulting a whistleblower attorney today.
How can I find a reliable whistleblower attorney familiar with these issues?
The whistleblower laws governing police officer disclosures vary drastically by state and circuit, so it is important that you consult your whistleblower attorney in deciding how to blow the whistle and/or protect yourself from retaliation. To get started, consult our FAQ on finding the whistleblower attorney that’s right for you. For a more in-depth look at the precedent governing police department whistleblowers check out Crossing the Thin Blue Line: Protecting Law Enforcement Officers Who Blow the Whistle by Professor Ann C. Hodges at University of Richmond School of Law.