Denver judge dismisses burnt out public defender’s free speech claim

DENVER (CN) — A Denver judge on Wednesday dismissed a former public defender’s First Amendment claim against the Colorado State Public Defender which fired him after he spoke out against attorney burnout and started dropping cases.

“The court declines to recognize an implied state constitutional cause of action for damages for free speech claims because adequate remedies are available pursuant to Section 1983 and the Whistleblower Act,” Second Judicial District Judge Sarah Wallace wrote in a 17-page opinion.

As a public defender, Travis Weiner found himself juggling a triple-digit caseload in 2024. The magnitude of the workload, he feared, could force him to violate professional standards and offer subpar representation. Worse, he claims he thought the entire office faced the same risk. When he reported his concerns to his supervisors, Weiner said he was told dropping cases wasn’t an option.

Based on a 2023 report, Weiner calculated his workload was nearly triple what experts found an attorney could competently carry, and that to properly represent his clients, he’d need to work 12-hour days, 365 days each year.

Weiner eventually withdrew from three cases, prompting the head of the office to discipline and then fire him. Claiming violations of the State Employee Protection Act and his free speech rights, Wiener sued the Colorado State Public Defender in November 2024.

In asking the court to dismiss the case, state attorneys requested a so-called Trinity hearing to determine Weiner’s ability to overcome the government’s immunity to suit. In January, the state argued Weiner wasn’t disciplined for speaking out, but for going against his supervisor’s directive against dropping cases.

Citing the 2006 U.S. Supreme Court decision in Garcetti v. Ceballos, the state also argued public employees are not entitled to First Amendment protections made in relation to their duties and that Weiner’s free speech claims were covered by the state Whistleblower Act.

While Weiner hoped pursuing state free speech claims would afford him greater protections that the U.S. Constitution, Wallace was unpersuaded.

“By alleging his termination violated the Whistleblower Act, Weiner pleaded a violation of the clear public policy in favor of disclosures of abuses of authority and illegal and unethical practices,” Wallace wrote. “The court is persuaded Weiner’s free speech claim sounds in tort and is subject to the Colorado Government Immunity Act.”

While Wallace dismissed Weiner’s free speech claim, she also wrote that she would rule on the whistleblower claim in a separate order.

Neither the Colorado State Public Defender nor the attorney general’s office immediately responded to an inquiry for comment.

Weiner is represented by Denver civil rights attorney David Lane, who also did not immediately respond to a request for comment.

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