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Police officer’s report of official misconduct not ‘citizen’ speech, not protected

By Lorene D. Park, J.D.

Affirming the dismissal of a police officer’s Section 1983 claim that he was subjected to discipline in retaliation for reporting racial profiling and other misconduct, the Seventh Circuit explained that an officer’s duty to report official police misconduct is part of the job. He was therefore speaking as a public employee, not a citizen, and the speech was not protected by the First Amendment. His Fourteenth Amendment claim based on bad references failed because he alleged no more than reputational harm, and that was not enough under a “stigma-plus” analysis (Roake v. Forest Preserve District of Cook County, February 17, 2017, Manion, D.).

Investigated for New Year’s champagne. The employee, who was a police officer in Cook County, Illinois, brought some champagne to the office on December 31, 2013, to celebrate the New Year. He claimed he was off duty at the time and had permission from a sergeant who was present at the celebration. Nonetheless, the department initiated disciplinary proceedings against him. At a pre-disciplinary hearing on February 7, 2014, hearing officers allegedly upheld the charges and, seeing the “handwriting on the wall,” the employee resigned. Thereafter, individuals in the department told prospective employers that he drank on the job and was not eligible for rehire, making it hard for him to find another job.

Retaliation? According to the employee, all of this was in retaliation for two instances when he engaged in protected activity by reporting official misconduct. First, he had reported in October 2013 that a fellow officer engaged in racial profiling. Second, he complained that a fellow officer was unjustly disciplined for calling the Department of Children and Family Services to report that a woman and children were in the forest preserves after hours in below-freezing weather. He filed suit alleging unlawful retaliation under the First Amendment and a due process claim based on reputational harm under the Fourteenth Amendment.

No First Amendment violation. Affirming dismissal of the First Amendment claim, the Seventh Circuit explained that, as a police officer, the employee had a duty to protect the public from harm, including harm resulting from illegal activity by law enforcement. So when he internally reported that fellow officers were abusing the public trust by acting illegally on the job, he was speaking as a public employee pursuant to his official duties, and not “as a citizen contributing to the civic discourse.” Thus, even assuming he was disciplined in retaliation for his speech, he failed to state a plausible claim under the First Amendment.

Due process claim fails under “stigma-plus” analysis. Also affirming the dismissal of the employee’s Fourteenth Amendment Due Process claim, the appeals court explained: “Mere injury to reputation, even if it seriously impairs one’s future employment prospects, is not a constitutionally protected liberty or property interest under the due process clause.” Instead, the employee had to show the government “distinctly altered his legal status in addition to tarnishing his good name.”

Under this “stigma-plus” analysis, the employee’s claim failed because, while he alleged that the defendants sullied his reputation by reporting that he drank on the job, he did not allege that they did anything to alter his legal status. Although he asserted that he was constructively discharged when certain “charges” were upheld at his disciplinary hearing, the pleadings did not support this argument. Instead, they show only that he resigned.