Court Revives Suit About Police Brutality Cover-Up

     MANHATTAN – A fired probationary police officer from upstate New York can pursue claims that he lost his job becasue he refused to stay quiet about a sergeant’s use of excessive force against a suspect, the 2nd Circuit ruled.



     Jason Jackler claimed he was called in to help Sgt. Gregory Metakes arrest Zachary Jones on Jan. 5, 2006, for disorderly conduct. Jackler, a probationary officer with the Middletown Police Department, wrote in his report that he arrived on the scene to find Jones in handcuffs with “multiple abrasions on his face.” Jackler says the suspect called Metakes a “dick” after he put Jones in the back of the cruiser and closed the car door. Metakes then immediately opened the door and punched Jones, who was still handcuffed, in the face, according to Jackler’s complaint.
     Middletown police policy requires officers to filed a report whenever physical force is used to subdue a suspect. In his report, filed on the morning of Jan. 11, Jackler described excessive force by Metakes, which backed up the suspect’s own complaint.
     Jackler said Lt. Paul Rickard and Lt. Patrick Freeman urged him later that day to change his report.
     With direction from Police Chief Matthew Byrne “to cover up and conceal the misconduct and illegal actions committed by Sgt. Metakes,” Jackler claimed the lieutenants threatened him and 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.”
     Jackler said he refused, so Byrne and Rickard recommended that the Board of Police Commissioners fire him the following week.
     In support of their recommendations, Jackler said the lieutenants lied about his job performance. Though the board had never before terminated a probationary police officer, it dismissed Jackler from further Middletown police employment, effective Jan. 21, 2006.
     At the same meeting, the board also voted to retain Jackler’s fellow probationary officer as a permanent officer and to hire four additional probationary officers.
     Jackler filed suit, claiming that these actions violated his right to free speech. A federal judge dismissed the complaint somewhat reluctantly, finding that the speech in question was not protected since it was made in Jackler’s capacity as a public employee rather than as a private citizen.
     “Ironically, it is because he was a public employee with a duty to tell the truth that his insistence on fulfilling that duty is unprotected,” U.S. District Judge Cathy Seibel wrote.
     A three-judge panel of the 2nd Circuit disagreed and revived the complaint.
     “Jackler’s official act of filing his January 11, 2006 report was not what constituted a violation of his First Amendment rights,” Judge Amanda Lyle Kearse wrote for the court. “Rather, his refusal to speak or report falsely about a matter of serious public concern is what forms the basis of plaintiff’s [claims of a] First Amendment violation.”
     “So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively,” the unanimous 33-page decision states. On remand, the court must determine whether Jackler spoke as a citizen or solely as an employee.
     The judges also noted the public interest in this case since “exposure of official misconduct, especially within the police department, is generally of great consequence to the public.”
     “In the present case, Jackler had a strong First Amendment interest in refusing to make a report that was dishonest,” Kearse wrote.
     “In the context of an official investigation into possible wrongdoing, a citizen has a right – and indeed, in some circumstances, a duty – to give evidence to the investigators,” the decision continues.
     Judge Robert Sack wrote a three-page concurring opinion that says Jackler’s case demands more careful First Amendment consideration since it is based on something he refused to say rather than on something he said. “The Soviet purge trials of the 1930’s remain notorious in large measure because they were marked by ‘confessions … made under pressure of intensive torture and intimidation,” Sack wrote.

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