Court Reinstates Officer’s First Amendment Claim

(CN) - The 4th Circuit revived the free-speech claims of a former Baltimore police officer who says he was fired for leaking an internal memo to the Baltimore Sun. In the memo, Michael Andrew called for an investigation into the department's use of deadly force against a barricaded suspect.

In December 2003, an elderly man killed his landlord over a rent increase and barricaded himself in his apartment.

Andrew was in charge of supervising the officers assigned to street control. He asked a response unit to scope out the apartment and attempt to negotiate with the suspect. On another official's command, however, the unit entered the suspect's apartment and fatally shot him.

After the shooting, Andrew submitted a memo to former Police Commissioner Kevin Clark, expressing his concern that the shooting was unjustified. Clark ignored the memo.

Andrew then contacted a reporter from the Baltimore Sun, explained the situation and provided a copy of the memo. The paper published an article about the shooting on Jan. 6, 2004.

According to Andrew, the publicity led to his demotion and eventual firing.

He filed a First Amendment action against his superiors at the Baltimore Police Department, claiming he'd written the memo out of concern for public safety. However, the district court found that the memo "never lost its character as speech pursuant to his official duties simply by virtue of the wider dissemination he elected to give it after his recommendations were ignored by the police commissioner."

The federal appeals court in Richmond, Va., vacated that decision, noting uncertainty over whether Andrew had an official duty to write the memo.

"At this stage of the proceedings in this matter, we must conclude that there is 'room for serious debate' regarding whether Andrew had an official responsibility to submit a memorandum regarding the Smith shooting," wrote Senior Judge Alarcon of the 9th Circuit, sitting by designation.

The three-judge panel affirmed denial of Andrew's motion for fees and costs.

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