This month, we discuss Matthews v. City of New York,¹ wherein the U.S. Court of Appeals for the Second Circuit identified circumstances in which public-employee speech qualifies for First Amendment protection. In its decision, written by Judge John M. Walker, Jr. and joined by Judge Peter W. Hall and Judge Garvan Murtha,² the court concluded that, when a public employee engages in speech pertaining to a subject that does not fall within the employee's duties, and does so in a manner in which ordinary citizens would be expected to engage, the employee speaks as a citizen whose speech is protected, not as a public employee, whose speech may be unprotected.

Background

On Feb. 28, 2012, plaintiff, NYPD police officer Craig Matthews, filed a complaint under 42 U.S.C. §1983 alleging that the City of New York retaliated against him in violation of the First Amendment to the U.S. Constitution and Article I, §8 of the New York State Constitution for speaking about the 42nd Precinct's arrest quota policy. Matthews alleged that, beginning in 2008, unnamed supervisors in the precinct implemented a quota system mandating the number of arrests, summons, and stop-and-frisks that police officers must conduct. Matthews further alleged that, over time, this quota system became more sophisticated as a “point” system was established and different point values were awarded or taken away based on the type of police action.

As a result of this quota system, and due to his belief that it had a negative impact on the NYPD, Matthews reported the system to the precinct's commanding officer in February 2009. Matthews talked with the precinct's commanding officer on several other occasions in 2009 and then again in 2011 when a new commanding officer assumed leadership of the precinct. In his complaint, Matthews alleged that defendants retaliated against him following his reports to his precinct's leadership by giving him punitive assignments, denying him overtime and leave, separating him from his career-long partner, exposing him to humiliating treatment by supervisors, and unfairly giving him negative performance evaluations.³

Prior Proceedings

Defendants moved to dismiss Matthews' complaint, arguing that his speech was made in his capacity as an NYPD employee pursuant to his official employment duties and was therefore unprotected speech. On April 12, 2012, district court judge Barbara S. Jones of the Southern District of New York granted defendants' motion to dismiss. On Nov. 28, 2012, a panel of the Second Circuit vacated the dismissal and remanded the case to the district court on the basis that the record had not been fully developed by the trial court and also to determine whether Matthews spoke “pursuant to his official duties when he voiced the complaints.”⁴

On remand, Matthews' case was reassigned to district court judge Paul A. Engelmayer. As further discovery was conducted, the record before the district court included evidence related to Matthews' employment duties, the NYPD patrol guide, and the channels available for both NYPD employees and civilians to communicate complaints to the NYPD. On May 20, 2013, defendants moved for summary judgment. On July 29, 2013, the district court granted defendants' motion, holding that Matthews' speech was made as an employee of the NYPD, not as a citizen, and thus was not protected by the First Amendment.

Second Circuit's Decision

The Second Circuit again reversed and remanded the district court's decision, this time holding that Matthews' speech was protected by the First Amendment. The court explained that when a public employee, whose duties do not involve formulating, implementing, or providing feedback on a policy that implicates a matter of public concern, engages in speech concerning that policy, and does so in a manner in which ordinary citizens would be expected to engage, he or she speaks as a citizen, not as a public employee.