| FOR IMMEDIATE RELEASE
June 26, 2000 |
CONTACT: 202-842-3560
JODY HEDEMAN COUSER |
Brief Opposes Decision Curtailing Remedies for First Amendment Violations
Washington, DC — Recently, the National Association of Police Organizations, Inc. (NAPO), and its National Law Enforcement Officers’ Rights Center, submitted to the U.S. Supreme Court an amicus curiae brief in support of two Garland (TX) police officers for injuries suffered due to repeated violations of their First Amendment rights. NAPO represents 220,000 sworn officers and 11,000 retired officers, including the Combined Law Enforcement Association of Texas (CLEAT), which represents these officers. These two petitioning officers sued (under 42 U.S.C. § 1983) the City of Garland, Texas, its former chief of police, and its former city manager for seven instances of severe retaliation taken against them for exercising their First Amendment rights. (The officers won a jury verdict against these two former officials, but not the City, and substantial damages, only to have their victory later reversed by the Fifth Circuit Court of Appeals.) This case, Allen Breaux & Joe Ambrogio v. City of Garland (TX), Terry Hensley, & Ron Holifield, affects both the ability of law enforcement officers and other public employees to recover damages for reprisals, harassment, and other adverse employment actions in retaliation for exercise of free speech rights. The federal appellate court took an extremely restrictive view on the levels of retaliatory actions by public employers necessary to constitute a “chilling effect” on the exercise of their First Amendment rights. The court basically limited recovery for any First Amendment violations to only those instances when the harmed public employee is fired, suspended (without pay) or demoted, no matter how injurious or offensive the retaliatory actions were—a view in conflict with most other federal appellate decisions (specifically, in the First, Second, Fourth, Seventh, and District of Columbia Circuits). NAPO filed this brief to support the officers’ efforts to reverse the Fifth Circuit’s decision in Breaux et al. v. City of Garland et al., 205 F.3d 150 (5th Cir. 2000).
Summary of the Facts
This case involves the First Amendment claims of Garland Police Officers Allen Breaux and Joe Ambrogio, the Petitioners, against the City of Garland, Texas, its former Police Chief, Terry Hensley, and its former City Manager, Ron Holifield, the Respondents. The Petitioners alleged that their constitutional rights to free speech and free association were seriously infringed when the Respondents retaliated against them for making private and public allegations of corruption in the Garland Police Department, which included expressions of concern about a political investigation of city council members.
While not fired from their positions, the officers suffered through an extensive campaign of retaliatory harassment by their supervisors, who were involved in the allegations of misconduct and corruption and therefore motivated by a desire to punish the officers for their speech on this matter of public concern. The following adverse employment actions were taken against the officers: 1) “trumped-up” Internal Affairs charges; 2) repeated interrogations of the officers during a biased investigation of the charges; 3) suspension with pay by Hensley, the official whom the Petitioners accused of abuse of power and retaliation; 4) defamatory public reprimands posted on the police department’s “Wall of Shame” and disseminated to the media; 5) three and one-half days of mental stability exams which included psychological and polygraph testing; 6) gag orders that continued even after the charges against the officers were resolved, effectively disabling them from defending against attacks on their reputations; and 7) threats to terminate the officers if the officers did not sign false confessions in the form of apology letters drafted by Hensley, which they refused to do.
It appears that the retaliation against the two officers began after Holifield expressed concern with the “tactics” of the officers’ union, the Garland Police Officers Association (GPOA) to Police Officers Breaux and Ambrogio, who were also officers in the GPOA at the time. (According to the Fifth Circuit’s decision, this Respondent allegedly threatened to “destroy” the GPOA if it acted “politically” with respect to these allegations concerning illegal political investigations being run by Hensley and to the results of a management survey of GPOA members.)
The jury found the individual Defendants liable, the court having previously granted summary judgment for the City (on the ground that Hensley and Holifield did not have "final policy?making authority" for the City with respect to "police officer employment decisions.") After a seven?day trial, the jury found the these two liable, awarding to the plaintiffs a total of $27.7 million in actual and punitive damages and costs, which the court reduced to just over $8 million, with the plaintiffs officers’ consent.
Both sides appealed the verdict to the Fifth Circuit Court of Appeals. The Fifth Circuit recognized the factual basis for the verdict against the individual defendants, stating, “The jury was persuaded that [the officers] became objects of a vendetta by Chief Hensley and City Manger Holifield, once they blew the whistle on politically-motivated investigations of Garland City Council members by the City’s top employees.” 205 F.3d at 156.
Notwithstanding the corroborating evidence, the Fifth Circuit panel ruled against both officers “because the Plaintiffs failed to prove that official retaliation against them was sufficiently serious to constitute a constitutional injury.” The Court found that all the reprisals and retaliatory actions against the officers did not constitute, either individually or collectively, the adverse employment actions necessary for a First Amendment retaliation claim. It stated: “Even though they persuaded the jury, ... and they truthfully spoke out to reveal political investigations of public officials, the exercise of First Amendment rights is not enough” and that the “actions taken by Defendants Hensley and Holifield did not give rise to 1983 liability.” As a result, the damage award was thrown out, and the officers recovered nothing. They then petitioned the U.S. Supreme Court, seeking their review of this case.
Summary of NAPO’s Position
NAPO’s Executive Director Robert T. Scully stated, “Protection against and remedies for First Amendment violations are crucial to the law enforcement profession and to citizens who benefit from reports of governmental malfeasance, corruption, or other matters of public concern. Law enforcement officers and other public employees should be able to engage in clearly protected exercises of free speech.”
Scully continued, “Unless the Supreme Court accepts and then reverses this decision, the First Amendment will provide a constitutional right without a remedy for public employees in the three states making up the Fifth Circuit and possibly other federal circuits in the future. As long recognized in constitutional law, a right without a remedy is no right at all. Government agencies in Texas, Louisiana, and Mississippi now have a ‘green light’ to impose serious adverse employment actions—short of actual dismissal, suspension, or demotion—in order to coerce and pressure employees who have spoken out on matters of public concern, even to the point of forcing their resignations. Police officers will be especially susceptible to such retaliation, because of the hierarchy within their departments and the availability of disciplinary action for the most minor infractions. This result is intolerable and goes against prevailing judicial precedents in other circuits finding that one serious retaliatory and harassing action is sufficient to recover damages. The availability of a remedy for constitutional violations should not depend on the federal circuit in which an officer performs his duty to protect and serve. Police officers and other public employees throughout the nation should be guaranteed equal treatment under the law.”
Scully concluded, “In summary, the questions presented to the Supreme Court represent grave issues of fundamental importance for the hundreds of thousands of law enforcement professionals, millions of other public employees, and their families. In view of the preeminence of the First Amendment’s protections, law enforcement officers and other public employees throughout the nation are entitled to constitutional protection from various types of harassing, intimidating, and retaliatory adverse employment actions, which chill and deter the exercise of free speech, as well as cause emotional and physical distress to the officers. At the very least, if officers and other public employees are not entitled to such constitutional protection and a remedy for violations of such, they should at least conclusively hear that judgment from the U.S. the Supreme Court, so that they do not proceed at their risk under a mistaken belief that the courts will protect their exercises of free speech rights in the public interest.”
FOR A COPY OF THE BRIEF, PLEASE CALL JODY COUSER AT 202-842-3560.
The National Association of Police Organizations (NAPO) is a coalition of police unions and associations from across the United States that serves in Washington, DC to advance the interests of America's law enforcement officers through legislative and legal advocacy, political action and education. Founded in 1978, NAPO now represents more than 4,000 police unions and associations, over 220,000 sworn law enforcement officers, 3,000 retired officers and more than 100,000 citizens who share a common dedication to fair and effective crime control and law enforcement.
FOR INTERVIEWS OF NAPO'S GENERAL COUNSEL,
PLEASE CALL JODY HEDEMAN COUSER AT THE NAPO OFFICE (202) 842-3560.
| Table of Contents | email NAPO here! | NAPO PAGE LINKS |
|---|