Claims From Whistle-|Blower NY Cop Revived

     (CN) – A Long Island police force must face claims that it retaliated against a lieutenant who leaked information to CNN and Newsday, the 2nd Circuit ruled Wednesday.
     Raymond Smith worked for the police department in Suffolk County, N.Y., since 1981, incurring discipline since as early as 1997 for misuse of his department-owned computer.
     The department discovered that Smith had installed a modem on a computer without authorization in 1997, had prevented other users from accessing his computer in 2000, and had used a computer to make flyers for a Fantasy Baseball League in 2006, according to the 2nd Circuit’s summary of the case.
     These infractions paled, however, in comparison to what the brass found in 2007 when searching for proof about why Smith was late to a July 27 hearing at a State Department of Motor Vehicles related to an arrest he made.
     Smith had claimed that his case notes were not in the usual file so had had to search for and review them on his computer in preparation of the hearing.
     The forensic exam found that Smith “had repeatedly, and without authorization,” emailed media outlets and others about departmental matters since 2004.
     In 2007, Smith began speaking with CNN commentator Jeffrey Toobin about Martin Tankleff, who was exonerated that year after serving 17 years in prison for his parents’ murder.
     Smith sent Toobin a “tip” that the detective may have helped plan the murder and orchestrated a cover-up, that the district attorney was protecting the actual murderers, and that the Suffolk Homicide Squad had a history of documented abuses, according to the ruling.
     Smith had also emailed Newsday correspondent Christine Armario in May 2007 about a pattern of ethnic discrimination in the department’s arresting of unlicensed drivers.
     The department transferred Smith to an administrative, nonsupervisory job without a computer, or the option of overtime or night shifts, cutting his pay by 10 percent, on Jan. 2, 2008.
     Smith received two disciplinary charges later that month, both related to his emails to Armario, and was suspended the next day for 30 days without pay.
     On Feb. 7, 2008, the former lieutenant was served with 32 additional disciplinary charges for various violations of the department’s rules and procedures.
     Upon returning to work in early March 2008, Smith was transferred to a different administrative position, and then retired voluntarily at the end of April.
     Smith sued the county and Police Commissioner Richard Dormer in 2010, alleging they retaliated against him for exercising his First Amendment rights.
     A federal judge in Islip granted the defendants summary judgment in 2013, however, holding that Smith failed to connect his protected speech and the adverse employment actions.
     Vacating that decision Wednesday, the 2nd Circuit said that the disciplinary charges from January and February 2008 imply that Smith’s speech was protected.
     “Those charges state that Smith commented on department policy ‘in a manner tending to bring discredit to the police department,'” the unsigned ruling from the three-judge appellate panel states. “The department thereby both characterized the content of the speech and cited that characterization as the basis for several disciplinary charges. Various internal department memoranda reveal similar direct evidence of a causal connection.”
     It is unclear that Smith’s prior computer misuse alone led to his transfer, the court said.
     “A reasonable jury might just as easily infer that because the department did not transfer Smith following his similar misconduct in the past, he was transferred because of his protected citizen-media speech, rather than in spite of it as defendants argue,” the judges wrote.
     They added: “The record evidence raises several genuine questions of material fact such that an award of summary judgment in the defendants’ favor is unjustified.”

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