Jackler v. Byrne

• Decision Date: 22 July 2011
• Docket Number: Docket No. 10–0859–cv.
• Citation: 658 F.3d 225,32 IER Cases 833,94 Empl. Prac. Dec. P 44231
• Parties: Jason M. JACKLER, Plaintiff–Appellant,v.Police Chief Matthew T. BYRNE, Individually and in his Official Capacity, Lt. Paul Rickard, in his Individual and Official Capacity and Lt. Patrick Freeman, in his Individual and Official Capacity, Defendants–Appellees.
• Court: U.S. Court of Appeals — Second Circuit

658 F.3d 225
94 Empl. Prac. Dec. P 44,231
32 IER Cases 833

Jason M. JACKLER, Plaintiff–Appellant,
v.
Police Chief Matthew T. BYRNE, Individually and in his Official Capacity, Lt. Paul Rickard, in his Individual and Official Capacity and Lt. Patrick Freeman, in his Individual and Official Capacity, Defendants–Appellees.

Docket No. 10–0859–cv.

United States Court of Appeals, Second Circuit.

Argued: Feb. 24, 2011.Decided: July 22, 2011.

[658 F.3d 228]

Stephen Bergstein, Chester, NY (Bergstein & Ullrich, Chester, NY,

[658 F.3d 229]

James E. Monroe, Dupee & Monroe, Goshen, NY, on the brief), for Plaintiff–Appellant.Brian S. Sokoloff, Westbury, NY (Mark A. Radi, Sokoloff Stern, Westbury, NY, on the brief), for Defendants–Appellees.Scott A. Korenbaum, New York, NY (Lawrence A. Vogelman, Nixon, Raiche, Manning, Vogelman & Leach, Manchester, NH, Andrew B. Reid, Springer & Steinberg, Denver, CO, of counsel), filed a brief on behalf of Amicus Curiae National Police Accountability Project in support of Plaintiff–Appellant.Devala A. Janardan, Bethesda, MD, filed a brief on behalf of Amicus Curiae International Municipal Lawyers Association in support of Defendants–Appellees.Before: KEARSE, SACK, and KATZMANN, Circuit Judges.Judge SACK concurs in the panel opinion and files a separate concurring opinion.KEARSE, Circuit Judge:

Plaintiff Jason M. Jackler, a former probationary police officer in Middletown, New York (“Middletown” or the “City”), appeals from a judgment of the United States District Court for the Southern District of New York, Cathy Seibel, Judge, dismissing his complaint, brought under 42 U.S.C. § 1983, alleging principally that defendant Matthew T. Byrne, Chief of the Middletown Police Department (“MPD” or the “Department”), and other members of the Department violated his First Amendment right to freedom of speech by causing the termination of his employment in retaliation for his refusals to make false statements in connection with an investigation into a civilian complaint alleging use of excessive force by a Department officer. To the extent pertinent to this appeal, the district court granted defendants' motion for judgment on the pleadings on the basis of Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), and Weintraub v. Board of Education, 593 F.3d 196 (2d Cir.) (“ Weintraub ”), cert. denied, ––– U.S. ––––, 131 S.Ct. 444, 178 L.Ed.2d 344 (2010), which held that when a public employee, pursuant to his official duties, makes statements that have no relevant analogue to speech by civilians who are not government employees, the government employee's speech is not protected by the First Amendment. On appeal, Jackler argues principally that Garcetti and Weintraub do not preclude First Amendment protection for his refusals to make false statements. For the reasons that follow, we agree and vacate the judgment insofar as it dismissed Jackler's First Amendment retaliation claims.

I. BACKGROUND

The following description of the events recounts the allegations in the complaint—and the contents of exhibits attached to it—in the light most favorable to Jackler and draws all reasonable inferences in his favor, as required in a review of a Rule 12(c) dismissal of his action. See, e.g., Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir.2010); Gumer v. Shearson, Hammill & Co., 516 F.2d 283, 286 (2d Cir.1974) (on a Rule 12(c) motion to dismiss a complaint, “the well-pleaded material facts alleged in the complaint must be taken as admitted”).

A. The Complaint's Assertion of First Amendment Claims

Jackler became a probationary police officer in MPD in January 2005. Byrne was the Chief of Police and senior administrator in charge of MPD's daily operations; defendants Paul Rickard and Patrick Freeman were MPD lieutenants and administrators. Decisions as to the hiring, retention, or promotion of MPD personnel

[658 F.3d 230]

were made by the City's Board of Police Commissioners (or “Board”) on the basis of information and recommendations provided by Byrne, Rickard, and Freeman. For nearly a year, Jackler was regarded as a good probationary officer.1. The Events of January 5, 2006

On January 5, 2006, Jackler was dispatched to a “Mobil on the Run” convenience store in Middletown to assist MPD Sergeant Gregory W. Metakes in the arrest and transportation of one Zachary T. Jones. When Jackler arrived, Jones was handcuffed with his hands behind his back. Jackler opened the rear driver-side door of his patrol car, and Metakes placed Jones in the back seat. As Metakes closed the door, Jones called Metakes a “dick,” loudly enough for both Jackler and Metakes to hear. Metakes immediately reopened the door and struck the still-handcuffed Jones in the face.

At the police station later that night, the MPD desk officer, Police Officer Sal Garretto, asked Jones about a large bump on Jones's head and abrasions on his face. Jones responded that during the arrest Metakes had, inter alia, smashed Jones's head into the ground, and that after handcuffing and placing Jones in the police car and hearing Jones call him a “dick,” Metakes had punched Jones in the face. Both Garretto and MPD Lieutenant Warycka, the supervisor on duty that night, noted in written reports that they observed injuries to Jones's face. Jones stated that he wanted to talk to someone about making a complaint.

MPD had a written policy prohibiting the use of unnecessary or unjustified force. MPD Departmental Order number 03–01 dated March 21, 2003, entitled “USE OF PHYSICAL FORCE” (“MPD Order 03–01” or “MPD Directive”)—a copy of which is attached to the complaint as Exhibit A—set out “guidelines for the use of force by members of [MPD]” (MPD Order 03–01, at 1) and described permissible, escalating, “level[s] of force” ( id. at 2–3). It provided, in part, that

[u]nnecessary force occurs when unjustified physical abuse of a person has occurred or when it is apparent that the type or degree of force employed was neither necessary nor appropriate, or when any degree of force is utilized as summary punishment or vengeance. THE USE OF INDISCRIMINATE FORCE IS PROHIBITED.

( Id. at 1–2 (emphases added).)

Accordingly, on the night of January 5, 2006, with the assistance of Garretto and Warycka, Jones filed a civilian complaint against Metakes for the use of excessive force. Jones's civilian complaint—a copy of which is attached to Jackler's complaint as Exhibit B—was filed on an MPD Police Personnel/Department Complaint Form (“MPD Complaint Form”) and repeated Jones's description to Garretto of Metakes's actions during the arrest and Metakes's punching Jones in the face after he had been handcuffed and placed in the police car. Jones's complaint stated that Jackler had witnessed the latter assault. “[U]nder penalty of perjury,” Jones signed the MPD Complaint Form, whose penultimate sentence stated: “False statements made in the foregoing complaint are punishable as a Class A misdemeanor pursuant to Section 210.45 of the Penal Law” (MPD Complaint Form (emphases in original)).

2. Jackler's Report and His Refusals To Make False Statements

The MPD Directive also included requirements that officers who used—or were present during the use of—physical force file written reports:

[658 F.3d 231]

Reporting—when a subject resists and physical force becomes necessary, to overcome said resistance, each officer who used physical force will complete a Subject Resistance Form for each person upon whom he/she used physical force....

An offense report will be completed by the officer who initially used physical force and a supplementary report will be completed by all other officers present whether they used physical force or not.

(MPD Order 03–01, at 3–4 (emphasis added).)

On January 9, 2006, defendant Freeman directed Jackler to file a supplementary report detailing what had occurred in connection with Metakes's arrest of Jones. On the morning of January 11, Jackler filed his one-page report (“Jackler Report” or “Report”), which corroborated Jones's civilian complaint that, inter alia, after hearing Jones utter the word “dick,” Metakes had reopened the car door and struck the handcuffed Jones in the face. Jackler's report—a copy of which is attached to his complaint as Exhibit C—stated as follows:

ON 1/5/06 AT APPROX. 8:55PM, I, OFFICER JACKLER, RESPONDED TO MOBIL ON THE RUN TO ASSIST SGT. METAKES OF THE NARCOTICS UNIT. UPON ARRIVAL, SGT. METAKES HAD A SUBJECT, NOW KNOWN TO ME AS ZACHARY JONES, HANDCUFFED AND UP AGAINST THE NARCOTICS CAR FOR DISORDERLY CONDUCT. I OBSERVED JONES TO HAVE MULTIPLE ABRASIONS ON HIS FACE. I OPENED UP THE DRIVER'S SIDE REAR–DOOR OF MY PATROL UNIT # 6 AND SGT. METAKES PLACED JONES IN THE BACK SEAT. UPON CLOSING THE DOOR, JONES UTTERED THE WORD “DICK”. SGT. METAKES THEN RE–OPENED THE DOOR AND STRUCK JONES IN THE FACE, THEN RE–CLOSED THE DOOR. WHILE I WAS TRANSPORTING JONES BACK TO [THE POLICE STATION] HE ASKED ME “IS HE ALLOWED TO DO THAT”? I STATED TO JONES TO DISCUSS THE SITUATION WITH THE OTHER OFFICER ONCE WE GET BACK [TO THE STATION].

Metakes, who has since been promoted to lieutenant, had a “close personal and professional relationship” with Byrne, Rickard, and Freeman (Complaint ¶ 22), and those defendants immediately sought “to cover-up and conceal the misconduct and illegal actions committed by Sgt. Metakes in connection with his arrest and apprehension of Jones on January 5, 2006” ( id. ¶ 27). On the afternoon of January 11, Rickard and Freeman met with Jackler. At that meeting, they “threaten[ed]” Jackler ( id. ¶ 30) and, as “direct[ed by] Chief Byrne,” attempted to “coerce [Jackler] to withdraw his supplemental report dated January 11, 2006 and refile a new report which contained false, incomplete and misleading information all in an effort to conceal the illegal actions and misconduct of Sgt. Metakes” ( id. ¶ 31). Rickard and Freeman repeated their attempts in several subsequent meetings. The Jackler Report was truthful; Jackler refused...