By Erica Shelley Nelson and Sarah Burke
In, Lynch v. Ackley, the Second Circuit found that a police chief was entitled to summary judgment dismissing a police officer’s claim that he was retaliated against for exercising his First Amendment rights. The Court also found that the police chief’s own retaliatory statements were an exercise of her First Amendment right to defend herself.
Todd Lynch had been a patrol officer and K-9 handler with the New London Police Department (NLPD), since 2007. He became the local union president in November of 2011. Margaret Ackley had been chief of police since 2009. In his complaint, Lynch submitted evidence showing that over a period of roughly three years beginning in August 2010, he spoke out on eight occasions, criticizing Ackley’s performance of her responsibilities, and alleged that he thereafter was unlawfully retaliated against because of his speech. Lynch:
(1) [A]dvocated among the union membership to assert a grievance protesting Ackley’s uninvited presence at a union meeting; (2) asked that the Union consider a no-confidence vote against Ackley; (3) endorsed the mayoral candidacy of City Councilor Michael Buscetto, who was an openly avowed critic of Ackley; (4) sponsored a paid advertisement which questioned Ackley’s leadership and asserted that her lack of judgment was negatively affecting police operations and public safety; (5) wrote to the mayor accusing Ackley of violating New London Executive Order No. 004, which prohibits officers from inquiring about an individual’s immigration status unless it directly pertains to a criminal investigation; (6) wrote to the mayor on behalf of the Union, expressing concern that the NLPD’s depleted officer ranks were jeopardizing public safety; and (7) participated in multiple public safety committee meetings.
Lynch asserted that, as retaliation and in response to his speech, the department revoked compensatory time accrued by him and by two other K-9 officers; denied him paid leave to attend the funeral of a former state police classmate; did not allowed him to attend a K-9 conference; investigated civilian complaints against him; investigated his time sheets and eliminated the day shift he was assigned; urged reduction of the K-9 unit’s budget; denied him overtime pay; and revoked his s union business leave.
On March 15, 2012, Lynch filed a civil rights complaint in Connecticut Superior Court alleging, a claim against Ackley and the City of New London (the “City”) under federal statue 42 U.S.C. §1983 for First Amendment retaliation. Ackley moved for summary judgment, arguing, with respect to Lynch’s civil rights claims, that her conduct did not violate the First Amendment and that, she was entitled to have the case against her dismissed. The district court denied Ackley’s motion and Ackley appealed.
The police chief charged with violating Lynch’s constitutional rights is entitled to a dismissal if at the time of the challenged conduct there was no “clearly established law” that such conduct constituted a constitutional violation. Ackley argued that her alleged retaliatory conduct did not violate a clearly established law and the Second Circuit agreed.
The Court went on to explain that there was no clear law as to whether Ackley’s alleged retaliatory actions constituted prohibited retaliation because Ackley’s alleged retaliatory acts were limited to her exercise of her own First Amendment right to defend herself against Lynch’s attacks. Rather, her speech in defending herself involved core First Amendment issues of public importance.
In summary, because no authority clearly established that Lynch’s interest in speech as a union officer attacking Ackley’s competence as chief outweighed the chief’s governmental interest in effective administration of the department, Lynch’s claim was dismissed. The court also held that Lynch’s First Amendment freedom of association claim failed because he did not show that Ackley retaliated against him because of his association with the union.
This is a complicated case that requires unpacking namely because I believe the circuit court got it wrong.
Lynch was able to show numerous examples of protected First Amendment speech involving the chief’s incompetence and his union activities. He also provided specific examples of the chief and department treating him adversely following his protected speech and activities.
The chief and the department defended the case by stating that the rule of law essentially allows them, a government employer, to take adverse action against Lynch for speaking on a matter of public concern if he is “disrupting” government operations. The catch with this argument is that if Lynch can show that the chief and the department actually took adverse actions on the basis of his speech, rather than out of fear of the disruption, then that defense fails.
I believe, as did the district court, based on the overwhelming evidence, that Lynch did not actually cause any “disruption in governmental operations,” and that the chief actually took action against him because of his protected First Amendment speech, which is prohibited by law.
This case has the unfortunate effect of chilling otherwise protected union speech.
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