Reuland v. Hynes

• Decision Date: 21 August 2006
• Docket Number: Docket No. 04-5521-cv.
• Citation: 460 F.3d 409
• Parties: Robert Charles REULAND, Plaintiff-Appellee, v. Charles J. HYNES, individually and in his capacity as District Attorney for the County of Kings, New York, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

Page 409

460 F.3d 409

Robert Charles REULAND, Plaintiff-Appellee, v. Charles J. HYNES, individually and in his capacity as District Attorney for the County of Kings, New York, Defendant-Appellant.

Docket No. 04-5521-cv.

United States Court of Appeals, Second Circuit.

Argued: October 25, 2005.

Decided: August 21, 2006.

Elizabeth I. Freedman, Assistant Corporation Counsel (Michael A. Cardozo, Corporation Counsel of the City of New York, on the brief) New York, NY, for Defendant-Appellant.

Jane Bilus Gould, Lovett & Gould, LLP, (Brita Nicaj, on the brief) White Plains, NY, for Plaintiff-Appellee.

Before WINTER, POOLER, and SOTOMAYOR, Circuit Judges.

POOLER, Circuit Judge.

On August 21, 2001, appellee Robert Charles Reuland filed suit against appellant Charles J. Hynes under 42 U.S.C. § 1983 claiming that his demotion within and later firing from the Brooklyn District Attorney's Office was in unlawful retaliation for his exercise of his rights under the First Amendment. Following a trial, the jury returned a special verdict finding that: (1) Reuland had not shown that one of his motives was to address a matter of public concern; (2) Reuland had shown that his statement to New York magazine was a substantial or motivating factor in Hynes's decision to demote him; (3) Hynes had not shown that he would have demoted Reuland in any event because Hynes believed Reuland lied to him; and (4) Reuland had not shown that his speech was a substantial or motivating factor in his termination.

Both Reuland and Hynes brought motions pursuant to Federal Rule of Civil Procedure 50(b) seeking entry of judgment in their favor based on the jury's findings of fact. Judge Gleeson ruled that the speaker's motive is not dispositive in determining whether speech is a matter of public concern and that Reuland's statement to New York magazine regarding the crime rate in Brooklyn is a matter of public concern. He also found that in light of the jury's findings regarding Hynes's motivation in demoting Reuland, Hynes cannot show this action was based on the potential for disruption rather than retaliation or avoid liability based on qualified immunity. He therefore issued an order directing that judgment be entered in favor of the plaintiff.

We agree with the district court and hold that the speaker's motive is not dispositive in determining whether speech is on a matter of public concern and that Reuland's statement is a matter of public concern. We also hold that Hynes has waived the issue of disruption by agreeing not to include it in the jury charge. Finally, we hold that Hynes cannot benefit from qualified immunity because it would not have been objectively reasonable for him to believe the speech was unprotected and the jury found that he acted with improper retaliatory motive.

BACKGROUND

Reuland began working for the Brooklyn District Attorney's office in January 1997. He initially worked in the Grand Jury Bureau, and, after about three weeks, was promoted to the Red Zone, a general trial division. After about a year-and-a-half, he was promoted to Senior Assistant District Attorney.

In May 2000, Reuland signed a contract with Random House for the publication of two books, one of which was Hollowpoint, a fictionalized account of a Brooklyn District Attorney that Reuland had already essentially completed. Around the same time, Reuland sought promotion to the Homicide Bureau. He met with the District Attorney, Charles Hynes, to discuss this possibility on May 31, 2000. They discussed Reuland's book, which Reuland assured Hynes contained no negative information about the office. Shortly after this conversation, on June 5, 2000, Reuland was promoted to the Homicide Bureau.

Hollowpoint was published on March 27, 2001. A couple of months before, in early 2001, Reuland was interviewed in his Homicide Bureau office by a reporter for New York magazine for an article about young lawyers in New York. The article was published in the February 26, 2001, issue of the magazine, which became available prior to that date, and discussed Reuland's upcoming book. The article also quoted Reuland as saying, "Brooklyn is the best place to be a homicide prosecutor" because "[w]e've got more dead bodies per square inch than anyplace else." Cameron Stracher, Raising the Bar, N.Y. Mag., Feb. 26, 2001, at 31.

On February 22, 2001, after the article was published, Reuland met with First Assistant District Attorney Amy Feinstein, who told him that prominent politicians were outraged over his description of Brooklyn in the article.¹ Reuland explained that he did not mean the statement to be literally true and was merely trying to explain why he enjoyed his job. He offered to write a letter to the editor explaining his remark. Feinstein and Assistant District Attorney Barry Schreiber edited Reuland's draft letter, and Hynes approved it. The letter explained that while the quote was correct:

[T]his was not intended to be, nor is it, literally true. In fact Brooklyn's murder rate has declined more than 66 percent during the past decade. Even with the remarkable reduction, the loss of life remains high and still keeps a homicide prosecutor busy—the point of my hyperbolic remark.

The letter was published in the April 2, 2001, issue. Letters, N.Y. Mag., Apr. 2, 2001, at 8.

On March 9, 2001, Reuland met with Hynes, who told him that his remarks were hurtful because, as District Attorney, Hynes had actually reduced the crime rate. Reuland says he explained that from his perspective, working directly with crime victims, there was still a great deal of work to be done and that he loved working as a prosecutor in Brooklyn in part because he felt he could make a difference. Hynes was not satisfied with this explanation and accused Reuland of lying to him and seeking the promotion to the Homicide Bureau simply to sell books. Hynes told Reuland he could either accept transfer to the Orange Zone, which would constitute a demotion back to a trial bureau, or quit. Ultimately, Reuland accepted the demotion.

Reuland did not receive positive reviews of his performance while in the Orange Zone. On July 16, 2001, Reuland wrote to Feinstein to request transfer back to the Homicide Bureau. Feinstein denied this request, and, the next day, told Reuland she expected his resignation by the end of the day. Reuland sent her his resignation.

After his termination, Reuland filed suit against Hynes in the Eastern District of New York claiming adverse employment actions in retaliation for his exercise of his First Amendment right to freedom of speech. Hynes moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) and on the basis of qualified immunity, which the district court denied. See Reuland v. Hynes, No. 01-cv-5661 (E.D.N.Y. April 12, 2002). Hynes appealed to this Court, and we affirmed by summary order, finding issues of fact and law that precluded resolution in Hynes's favor. See Reuland v. Hynes, 53 Fed. Appx. 594 (2d Cir.2004). Following remand and discovery, Hynes moved for summary judgment, which the district court denied in a detailed opinion setting out numerous factual disputes that required resolution at trial. See Reuland v. Hynes, 2004 WL 1354467 (E.D.N.Y. June 17, 2004).

A jury trial was held, at which Hynes testified that he met with Reuland after the New York magazine statement was published because he wanted to know why Reuland would say something that was not supported by statistics. Hynes also testified that he decided to demote Reuland during this meeting because he believed Reuland had lied to him about his reasons for seeking a transfer to the Homicide Bureau. Hynes did not express any concern that, because Reuland's statement to New York magazine had been untrue, Reuland's credibility would be destroyed and he would no longer be able to function effectively as a prosecutor, as Hynes now contends.

After the conclusion of testimony, Judge Gleeson held a conference with the parties to go over the verdict form and jury charge. At this conference, defense counsel suggested the jury be asked if Hynes reasonably believed Reuland's false statement to New York magazine would interfere with their working relationship, a fact that could then be weighed by the court in determining the Pickering balance. See Pickering v. Bd. of Ed., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). The district court found that the evidence presented went only to whether Reuland had lied to Hynes about his reasons for seeking a promotion to the Homicide Bureau, not whether he had lied in general, and suggested this was "not a Pickering question, it's a causation question." Defense counsel agreed and did not object to the district court's failure to ask any questions related to disruption.

The jury found that Reuland's statement in New York magazine was a motivating factor in Hynes's decision to demote him, and that, absent this motivation, Reuland would not have been demoted anyway, because Hynes believed Reuland had lied to him. However, they found that the statement was not a motivating factor in Reuland's termination. The jury also found that, in making the statement, Reuland was not motivated by a desire to address a matter of public concern. On the issue of damages, the jury awarded $30,000 for Reuland's demotion and declined to award punitive damages.

Both Reuland and Hynes sought entry of judgment in their favor based on the jury's findings of fact. Judge Gleeson held that the jury's finding regarding Reuland's motive was not dispositive in determining whether that speech addressed a matter of public concern and concluded that the crime rate in Brooklyn is inherently a matter of public concern. See Reuland v. Hynes, 01-cv-5661, 2004 WL 2098664, at *2-7 (E.D.N.Y. Sept.17, 2004). He further held that the jury's finding regarding Hynes's motivation precluded Hynes from showing that the reason for the demotion was disruption, and from...