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.