Federal Court Rules in Favor of Free Speech in Baltimore Police Officer Whistleblower Case
FOR IMMEDIATE RELEASE
April 2, 2009
CONTACT: Meredith Curtis, ACLU of Maryland, 410-889-8555; media@aclu-md.org
BALTIMORE – The Fourth Circuit Court today ruled that a case brought by a former Baltimore City Police commander and whistleblower raises important First Amendment issues, and vacated a lower court order dismissing the officer’s lawsuit. The American Civil Liberties Union of Maryland joined a friend-of-the-court brief prepared by Public Citizen Litigation Group, which focused on the free speech rights of government whistleblowers. The case will now be reheard in U.S. District Court.
“If the District Court decision had been allowed to stand, government whistleblowers would have been without any legal protection, and the press’s ability to accurately report on government conduct would have been severely compromised,” said David Rocah, Staff Attorney for the ACLU of Maryland. “Under the District Court’s interpretation of the law, government employees would have been subject to discipline for internally expressing their concerns, and for expressing their concerns publicly. Thankfully, the United States Court of Appeals made clear that that’s not the law.”
In 2003, Maj. Michael Andrew was the commander of the Eastern District in the BCPD. In December of that year, BCPD tactical officers shot and killed an elderly man who had barricaded himself inside his apartment within the Eastern District. Nine days later, Andrew prepared a memo for the Police Commissioner, which he forwarded up the chain of command, expressing his “serious concerns” about the way in which the incident had been handled. When the commissioner failed to respond to the memo, Andrew gave a copy to the Baltimore Sun, which published an article in Jan. 2004 quoting extensively from the memo. After the article was published, the BCPD charged Andrew with giving confidential information to the media, and eventually fired him in September of 2004, although he was subsequently rehired. Andrew filed suit alleging that his termination violated the First Amendment, because it was done in retaliation for his leak of the memo to the press.
The District Court found that Andrew’s claims were barred by the Supreme Court’s recent decision in Ceballos v. Garcetti, which held that there is no First Amendment protection for statements made by a government official as long as the statements are made as part of the official’s job duties (Garcetti involved a prosecutor who claimed he was disciplined for writing a memo to his superiors recommending that a prosecution be dismissed). The ACLU became involved because even if the District Court was correct that the memo at issue in this case was written as part of Maj. Andrews’ job duties, we thought that the lower court judge was wrong in failing to consider whether the separate act of providing the memo to the press was protected by the First Amendment.
The Fourth Circuit Court of Appeals held today that the District Court was wrong to conclude that the memo was written as part of Andrew’s job duties, and thus wrong for dismissing the case on that basis. It also made clear that the lower court had to analyze the separate question of whether providing that memo to the press was protected by the First Amendment. In a separate concurring opinion, Judge Wilkinson writes powerfully about the critical importance of government whistleblowers like Maj. Andrew:
To throw out this citizen who took his concerns to the press on a motion to dismiss would have profound adverse effects on accountability in government. . . . “[I]t seems inimical to First Amendment principles to treat too summarily those who bring, often at some personal risk, its operations into public view. It is vital to the health of our polity that the functioning of the ever more complex and powerful machinery of government not become democracy’s dark lagoon.
The opinion in the case, Andrew v. Clark, was released on April 2, 2009. The ACLU’s friend of the court brief was written by Bonnie Robin-Vergeer, who also participated in the oral argument in the Court of Appeals.
Read the opinion:
http://www.aclu-md.org/aPress/Attachments/Andrew_decision.pdf
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