Free Reply Brief - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE : : : : Plaintiffs, : : v. : : COLONEL L. AARON CHAFFINCH, : individually and in his official capacity as : Superintendent of the Delaware State Police; : LIEUTENANT COLONEL THOMAS F. : MACLEISH, individually and in his official : capacity as Deputy Superintendent of the : Delaware State Police; DAVID B. MITCHELL, : in his official capacity as the Secretary of the : Department of Safety and Homeland Security of : the State of Delaware; and DIVISION OF : STATE POLICE, DEPARTMENT OF SAFETY : AND HOMELAND SECURITY, STATE OF : DELAWARE, : : Defendants. : CORPORAL B. KURT PRICE; CORPORAL WAYNE WARREN; and SERGEANT CHRISTOPHER D. FORAKER,

C.A.No.04-956-GMS

PLAINTIFFS' REPLY BRIEF IN SUPPORT OF THEIR RENEWED MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE FOR JUDGMENT AS A MATTER OF LAW ON THEIR PETITION CLAUSE COUNTS THE NEUBERGER FIRM, P.A. THOMAS S. NEUBERGER, ESQ. (#243) STEPHEN J. NEUBERGER, ESQ. (#4440) Two East Seventh Street, Suite 302 Wilmington, DE 19801 (302) 655-0582 [email protected] [email protected] Attorneys for Plaintiffs Dated: July 14, 2006 MARTIN D. HAVERLY, ATTORNEY AT LAW MARTIN D. HAVERLY, ESQ. (#3295) Two East Seventh Street, Suite 201 Wilmington, DE 19801 (302) 654-2255 [email protected]

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TABLE OF CONTENTS ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 I. II. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 PLAINTIFFS ENGAGED IN FIRST AMENDMENT PROTECTED PETITIONING OF THE GOVERNMENT FOR REDRESS OF GRIEVANCES . . . . . . . . . . . . . . . . . . 1 A. B. The Big Picture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 The Petition Clause Protects a Particular Type of Expressive Activity Expression Directed to the Government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 The Forms of Expression That Constitute a `Petition' . . . . . . . . . . . . . . . . . . . . 4 1. 2. 3. 4. D. Letters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 E-mails . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Lawsuits and Grievances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Other Forms of Expression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

C.

A Formal Mechanism is Not Needed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 1. The Defense Focus on the Requirement of a Formal Mechanism is a Red Herring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 But Even if a Formal Mechanism is Required, One Existed and It Was Invoked . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

2.

E.

The Determination of What Constitutes a `Petition' Does Not Depend on the Status of the Speaker Either . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

F. III.

GARCETTI DOES NOT AFFECT PLAINTIFFS' FIRST AMENDMENT PETITION CLAUSE CLAIMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 A. B. Plaintiffs' Petitions Were Not Made Pursuant to their Job Duties . . . . . . . . . . 14 Garcetti Has No Impact Upon Third Circuit Petition Clause Jurisprudence . . 15 1. 2. Garcetti Was a Free Speech Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 The Portion of the Free Speech Analysis Affected by Garcetti Has No Analogue in Third Circuit Petition Clause Jurisprudence . . . . . . . 15 i

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C. D.

The Sole Area Upon Which Plaintiffs and Defendants Agree . . . . . . . . . . . . . 16 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

ii

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TABLE OF AUTHORITIES Cases Page

A.D. Bedell Wholesale Co., Inc., v. Philip Morris, Inc., 263 F. 3d 239 (3d Cir. 2001) . . . . . . . . . . . . . 1-2 Adkins v. Rumsfeld, 389 F. Supp. 2d 579 (D. Del. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Anderson v. Davila, 125 F. 3d 148 (3d Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,4,6,13 Azzaro v. County of Allegheny, 110 F. 3d 968 (3d Cir. 1997) (en banc) . . . . . . . . . . . . . . . . . . . . . . . . . 8 Barnes Foundation v. Township of Lower Merion, 242 F. 3d 151 (3d Cir. 2001) . . . . . . . . . . . . . . . . . . 5 Bieregu v. Reno, 59 F. 3d 1445 (3d Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Brennan v. Norton, 350 F. 3d 399 (3d Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,8,16 Brewster v. City of Poughkeepsie, 2006 WL 1676143 (S.D.N.Y. June 8, 2006) . . . . . . . . . . . . . . . . . . 16 Briscoe v. LaHue, 460 U.S. 325 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Brownsville Golden Age Nursing Home, Inc. v. Wells, 839 F. 2d 155 (3d Cir. 1988) . . . . . . . . . . . 2,5,10 Cal. Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Connick v. Myers, 461 U.S. 138 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Eastern Railroad Presidents Conf. v. Noerr Motor Freight, 365 U.S. 127 (1961) . . . . . . . . . . . . . . . . . . 1 Eichenlaub v. Township of Indiana, 385 F. 3d 274 (3d Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Ferrone v. Onorato, 2006 WL 1669988 (W.D. Pa. June 13, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . 2,4-5,10 Garcetti v. Ceballos, 126 S. Ct. 1951 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Green v. Phila. Hous. Auth., 105 F.3d 882 (3d Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Herr v. Pequea Township, 274 F. 3d 109 (3d Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Hill v. City of Scranton, 411 F. 3d 118 (3d Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,6,16 Lewis v. Casey, 518 U.S. 343 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Losch v. Borough of Parkesburg, Pa., 736 F. 2d 903 (3d Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . 2,6-7 Mariana v. Fisher, 338 F. 3d 189 (3d Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 iii

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McDonald v. Smith, 472 U.S. 479 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2,4,10 McGreevy v. Stroup, 413 F. 3d 359 (3d Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Monteiro v. City of Elizabeth, 436 F.3d 397 (3d Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Mt. Healthy Sch. Dist. Bd. Of Educ. v. Doyle, 429 U.S. 274 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 NAACP v. Button, 371 U.S. 415 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 New York Times v. Sullivan, 376 U.S. 254 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Pickering v. Bd. of Educ., 391 U.S. 563 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,16 Price v. Chaffinch, 2006 WL 1313178 (D. Del. May 12, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 San Filippo v. Bongiovanni, 30 F. 3d 424 (3d Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Smith v. McDonald, 562 F. Supp. 829 (M.D.N.C. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-5 Smith v. McDonald, 737 F. 2d 427 (4th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-5 Swartzwelder v. McNeilly, 297 F.3d 228 (3d Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Terminiello v. City of Chicago, 337 U.S. 1 (1949) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 United Artists Theatre Circuit, Inc. v. Twp. of Warrington, 316 F. 3d 392 (3d Cir. 2003) . . . . . . . . . . . 2 United Mine Workers v. Pennington, 381 U.S. 657 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2 United Mine Workers of America v. Ill. State Bar Ass'n, 389 U.S. 217 (1967) . . . . . . . . . . . . . . . . . . . . 2 Virginia v. Black, 538 U.S. 343 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Watters v. City of Phila., 55 F. 3d 886 (3d Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 We, Inc. v. City of Phila., 174 F. 3d 322 (3d Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,16 White v. Nicholls, 44 U.S. 266 (1845) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,6,10 White Plains Towing Corp. v. Patterson, 991 F.2d 1049 (2d Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . 17

Constitutions and Statutes U.S. Const., Amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Delaware Const. of 1897 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 iv

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Delaware Const. of 1897, Art. 3 § 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Delaware Const. of 1897, Art. 3 § 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Delaware Const. of 1897, Art. 7 § 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Delaware Const. of 1897, Sch. § 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 29 Del.C. § 2901 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 29 Del.C. § 2906(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 29 Del.C. § 2907(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 29 Del.C. § 2909(b)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Law Reviews Julie M. Spanbauer, The First Amendment Right to Petition Government for a Redress of Grievances: Cut From a Different Cloth, 21 Hastings Const. L.Q. 15 (1993) . . . . . . . . . . . . . . 1

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ARGUMENT I. INTRODUCTION. The defense Answering Brief (DAB) has made clear what is not at issue. The defense does not challenge the long history and independent pedigree of the petition clause. The defense does not contest that the right to petition extends to all departments of government. The defense does not contest that the right to petition even extends to petitioning Executive agencies like the Delaware State Police and quasi Executive or administrative agencies like the Delaware State Auditors Office. Instead, defendants appear to only challenge two discrete issues. First, whether plaintiffs' expressions constitute a `petition.' Second, even if plaintiffs did engage in protected petitioning, whether the recent free speech clause opinion in Garcetti v. Ceballos, ­ U.S. ­, 126 S.Ct. 1951 (2006), nonetheless spells the end of plaintiffs' petition clause claims. II. PLAINTIFFS ENGAGED IN FIRST AMENDMENT PROTECTED PETITIONING OF THE GOVERNMENT FOR REDRESS OF GRIEVANCES. A. The Big Picture. From the signing of the Magna Carta in 1215,1 to the signing of the Bill of Rights demanded from William and Mary by Parliament in 1689,2 from the Declaration of Rights and Grievances by the Stamp Act Congress of 1765 in the American Colonies,3 to the enactment of the First Amendment as part of the Bill of Rights on December 15, 1791, from the Supreme Court's numerous decisions addressing the nature and scope of the petition clause,4 to the Third Circuit's many decisions doing the same,5 the long rich history of
1

San Filippo v. Bongiovanni, 30 F.3d 424, 443 n.22 (3d Cir. 1994); A.D. Bedell Wholesale Co., Inc. v. Philip Morris Inc., 263 F.3d 239, 252 (3d Cir. 2001) (citing Julie M. Spanbauer, The First Amendment Right to Petition Government for a Redress of Grievances: Cut From a Different Cloth, 21 Hastings Const. L.Q. 15, 17 (1993)).
2

McDonald v. Smith, 472 U.S. 479, 482 (1985); San Filippo, 30 F.3d at 443. McDonald, 472 U.S. at 482.

3

See, e.g. White v. Nicholls, 44 U.S. 266 (1845); Eastern Railroad Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961); NAACP v. Button, 371 U.S. 415 (1963); United Mine Workers

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the petition clause is fully documented. This long rich history is instructive in our present case. Indeed, after analyzing much of this same history, the Third Circuit itself explained that "[t]here is no persuasive reason for the right of petition to mean less today than it was intended to mean in England three centuries ago." San Filippo, 30 F.3d at 443. In other words, petition clause rights have not contracted over the years. Instead, they should mean as much today as they did then. B. The Petition Clause Protects a Particular Type of Expressive Activity Expression Directed to the Government. Both the Supreme Court and the Third Circuit have consistently found that the petition clause protects expression of a particular type - expression directed to the government itself. Although the "right to petition is cut from the same cloth as the other guarantees of [the First] Amendment, [it] is an assurance of a particular form of expression." McDonald, 472 U.S. at 482. As the Third Circuit has explained, when one files a "petition" one is not appealing over government's head to the general citizenry: when one files a "petition" one is addressing government and asking government to fix what ... government has broken or has failed in its duty to repair. San Filippo, 30 F.3d at 442; accord Anderson, 125 F.3d at 162; Ferrone v. Onorato, 2006 WL 1669988, *5 (W.D.Pa. June 13, 2006). The petition clause's exclusive focus on expression directed to the government is apparent from the text of the First Amendment itself. See U.S. Const., Amend I. ("Congress shall make no law ... abridging ... the right of the people ... to

v. Pennington, 381 U.S. 657 (1965); United Mine Workers of America v. Ill. State Bar Ass'n, 389 U.S. 217 (1967); Cal. Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972); McDonald v. Smith, 472 U.S. 479 (1985). See, e.g. Losch v. Borough of Parkesburg, Pa., 736 F.2d 903 (3d Cir. 1984); Brownsville Golden Age Nursing Home, Inc. v. Wells, 839 F.2d 155 (3d Cir. 1988); San Filippo v. Bongiovanni, 30 F.3d 424 (3d Cir. 1994); Bieregu v. Reno, 59 F.3d 1445 (3d Cir. 1995) (overruled on other grounds by Lewis v. Casey, 518 U.S. 343 (1996)); Anderson v. Davila, 125 F.3d 148 (3d Cir. 1997); We, Inc., v. City of Phila., 174 F.3d 322 (3d Cir. 1999); A.D. Bedell Wholesale Co., Inc. v. Philip Morris Inc., 263 F.3d 239 (3d Cir. 2001); Herr v. Pequea Township, 274 F.3d 109 (3rd Cir.2001) (abrogated on other grounds by United Artists Theatre Circuit, Inc. v. Twp. Of Warrington, 316 F.3d 392, 400 (3rd Cir.2003)); Mariana v. Fisher, 338 F.3d 189 (3d Cir. 2003); Brennan v. Norton, 350 F.3d 399 (3d Cir. 2003); Hill v. City of Scranton, 411 F.3d 118 (3d Cir. 2005).
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petition the Government for a redress of grievances."); accord McDonald, 472 U.S. at 482 (as James Madison, the author of the First Amendment, explained more than 200 years ago, the "people `may communicate their will' through direct petitions to the legislature and government officials.") (quoting 1 Annals of Cong. 738 (1789)). The petition clause's focus on expression directed to the government is contrasted with the free speech clause's original focus on expression directed towards the public and citizenry at large. See, e.g. Pickering v. Bd. of Educ., 391 U.S. 563, 573 (1968) (noting the "public interest in having free and unhindered debate on matters of public importance -- [is] the core value of the Free Speech Clause of the First Amendment."); cf. New York Times v. Sullivan, 376 U.S. 254, 269 (1964) (non-public employee context - free speech exists "to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people"). Many of the early Supreme Court opinions make this clear. See, e.g. Pickering, 391 U.S. 563 (public employee speech to newspaper); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977) (public employee speech to a radio station); N.Y. Times, 376 U.S. 254 (non-public employee speech in a newspaper). In keeping with the progressive expansion of the scope of the free speech clause by the Supreme Court in the 20th Century, free speech protections were subsequently extended to include speech made internally even if it was not released to the public. See Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410, 415-16 (1979) (the groundbreaking public employee free speech case in this area). In other words, public employee speech could now be directed to the government itself, and not just to the general citizenry, and it could still receive protection. Notwithstanding the Supreme Court's expansive interpretation of the free speech clause over the last 40 years to include expressions that once were the sole province of the petition clause, such an expansion does not mean that expression that would have otherwise been protected by the petition clause in the past has now been stripped of that protection and any

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remedy lies solely within the now retracting scope and protections of the free speech clause.6 The government audience for plaintiffs' expression about the broken FTU is key to understanding that plaintiffs engaged in petitioning. Plaintiffs did not go out and stand on a park bench and raise their health and safety concerns directly to the citizenry. If they had, only the free speech clause would provide them with First Amendment protection from retaliation. Instead, plaintiffs raised their concerns directly to the government, the very government that had caused the problems, and the very government that had the power to fix the problems. This is the key distinction which brings plaintiffs' expressions about the hazardous conditions at the FTU within the scope of First Amendment petition clause protection. See San Filippo, 30 F.3d at 442 ("when one files a `petition' one is addressing government and asking government to fix what ... government has broken or has failed in its duty to repair."); Anderson, 125 F.3d at 162 (same). C. The Forms of Expression That Constitute a `Petition.' Contrary to the crabbed defense reading of the definition of a `petition,' a wide variety of expressions have been recognized as being a `petition.' 1. Letters. In McDonald v. Smith, 472 U.S. 479 (1985), the petitions at issue were letters directed to the President, to a Presidential Adviser, several members of Congress and the Director of the FBI, urging them not to appoint a particular individual as U.S. Attorney. Id. at 481; see Smith v. McDonald, 562 F.Supp. 829, 832 (M.D.N.C. 1983); Smith v. McDonald, 737 F.2d 427, 427 (4th Cir. 1984). That the letters were petitions is a necessarily included part of the Court's holding in that case. Moreover, neither the district court, the Fourth Circuit nor the Supreme Court ever questioned or challenged that these letters were a `petition' within the scope of the meaning of that word in the First Amendment. See San Filippo, 30 F.3d at 439 (noting that the "petition at issue in McDonald was a letter to the President."); Ferrone, 2006 WL

As the recent Garcetti and other Supreme Court decisions from the last twenty-five years arguably reveal, the Court has begun to cut back on free speech protections for the subset of public employees.

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1669988, *7 (noting that the Supreme Court's decision in McDonald "appear[s] to refute [d]efendants' argument that letters cannot be considered petitions under the Petition Clause"). In White v. Nicholls, 44 U.S. 266 (1845), the petitions at issue also were letters to the President and the Secretary of the Treasury, urging them not to appoint a particular individual as collector of customs. Id. at 267-75. Although a difficult opinion to parse, it is clear from the Supreme Court's discussion and citation of authorities, including early American state court and English common law decisions, that the letters were considered to be petitions of government. Id. at 289-91; see Smith, 562 F.Supp. at 839-40 (discussing the facts of White and noting that the Supreme Court ruled that the letters could be considered a petition for the redress of grievances); Smith, 737 F.2d at 428-29 (discussing White and noting that the Court therein recognized that the letters were petitions for the redress of grievances). In Brownsville, 839 F.2d 155, the petitions at issue were letters to the President, the Governor, a U.S. Senator, legislative committees, the State Secretary of Health and others, urging them to crack down on appalling conditions at a nursing home for the elderly and remedy violations of the law at that facility. Id. at 156-58. The Third Circuit looked to petition clause precedent in holding that the letters were protected petitioning of government and could not be the basis of tort liability. Id. at 160; see Barnes Foundation v. Township of Lower Merion, 242 F.3d 151, 159-60 (3d Cir. 2001) (noting that the Brownsville decision rests on the petition clause). Therefore, our written statements and other documents handed to the Auditors are the equivalent of the letters found in the case law and therefore constitute petitions. 2. E-mails. In Ferrone v. Onorato, 2006 WL 1669988 (W.D.Pa. June 13, 2006), the Western District found petitions in the form of e-mails to be indistinguishable from the letters the Supreme Court had found to be protected in McDonald, and that the e-mails sent by the plaintiffs in that case to several County Council members were protected petitions. Id. at *7.

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Therefore, our e-mails up the chain of command are the equivalent of the letters found in the case law and the e-mails found in Ferrone and therefore constitute petitions. 3. Lawsuits and Grievances. In San Filippo, 30 F.3d 424, the petitions at issue were lawsuits and grievances. Id. at 439, 441. In Anderson, 125 F.3d 148, the petitions at issue were the filing of a charge of discrimination with the EEOC and the filing of lawsuit. Id. at 161. In Hill, 411 F.3d 118, the petition at issue was a lawsuit. Id. at 121. As the defense would concede, each of these qualifies as a petition. Therefore, Sgt. Foraker's initial lawsuit before Judge Farnan constitutes a petition under this case law. 4. Other Forms of Expression. In Losch, 736 F.2d 903, the petition at issue was in the form of an inartful note taped to the door of a police station by a citizen, telling a particular police officer (a state actor) to stop harassing him and his family. Id. at 906. The Third Circuit found that it was "clearly established" that the Losch plaintiff had the right to "petition the government in the manner that he did" and to be free of retaliation for doing so. Id. at 910. The scope of the petition clause also was recently demonstrated in Monteiro v. City of Elizabeth, 436 F.3d 397 (3d Cir. 2006), where the Third Circuit noted that a city councilman was "exercising his constitutional right to petition the government on behalf of himself and his constituents" when he spoke out against the proposed budget at a city council meeting. Id. at 400. If an inartful note taped to a door, a letter, or an e-mail, is a `petition,' under this authority plaintiffs' written statements to the Auditor, oral statements, compendium of key concise documents, and eleven volumes of materials and Sgt. Foraker's e-mails up the chain of command on behalf of himself and his men are historic petitions to government for redress of grievances.

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The defense claim that Losch was not asserting a violation of the petition clause is plainly wrong. (DAB at 4). First, the opinion itself states that in addition to a Fourth Amendment malicious prosecution claim against a police officer, Losch "further claims that defendants were penalizing him for the exercise of his First Amendment rights." Losch, 736 F.2d at 907. Later in the opinion, as part of its qualified immunity inquiry, the Court then had to determine "whether Losch had clearly established rights to petition the government in the manner that he did and to be free of [retaliatory] malicious prosecution for that exercise." Id. at 910. The Court next determined that Losch had clearly established rights and there "was no ambiguity in the law" in this regard. Id.7 D. A Formal Mechanism Is Not Needed. Although it is certainly an important case for public employees because of its unique holding, the breadth and scope of the petition clause did not begin or end with the Third Circuit's San Filippo decision. The nature of the petition clause is not limited by the scope of that decision and the particular issue which it addressed. The significance of San Filippo lies with its one of a kind holding among the Courts of Appeals - that the public concern limitation on public employee speech does not apply to public employee petitions. It also should have gone without saying that San Filippo must be read in light of the long history of the petition clause. Indeed, much of the decision itself talks about and addresses this long history in great detail as it searches for the historical scope and meaning of the clause. See San Filippo, 30 F.3d at 435-43. 1. The Defense Focus on the Requirement of a Formal Mechanism is a Red Herring. If anything, a careful reading of San Filippo and study of the decisional authority it cites reveals not that the petition clause only protects expression invoking a formal mechanism

The defense confusion apparently arises from a misunderstanding of the fact that both the free speech clause and petition clause each protect various types of comment and expression. As discussed above, the petition clause protects a particular type of expression when directed towards the government as part of an attempt to seek redress of grievances.

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established by the government, but rather that expression invoking a formal mechanism was the initial rationale used by the Third Circuit for its decision not to impose a `public concern' requirement on employee petitions. This demonstrates that the repeated defense mantra that no formal mechanism was invoked is a red herring. Assuming arguendo that Third Circuit petition clause jurisprudence had developed along a different path and that a public concern analysis does in fact apply, because plaintiffs' petitions herein addressed health and safety issues affecting thousands of public employees, their petitions clearly were on a matter of public concern. Four cases strongly support this ruling and so the defense argument is immaterial. See Brennan v. Norton, 350 F.3d 399, 415 (3d Cir. 2003) (speech by a fireman addressing asbestos contamination in a firehouse clearly a matter of public concern); McGreevy v. Stroup, 413 F.3d 359, 365 (3d Cir. 2005) (speech by a school nurse addressing unlicensed pesticide spraying that was making students and teachers ill "were matters of true public concern"); Adkins v. Rumsfeld, 389 F.Supp.2d 579, 586 (D.Del. 2005) (speech by an Air Force staff sergeant addressing the administering of a tainted anthrax vaccine to military personnel is a matter of public concern); Watters v. City of Phila., 55 F.3d 886 (3d Cir. 1995) (speech by a police department employee addressing problems with mental health services for police officers is a matter of public concern because those problems could impair the delivery of police services). Indeed, the Court has already held that plaintiffs "clearly engaged" in protected free speech activity when they spoke out about the health and safety problems plaguing the FTU, Price v. Chaffinch, 2006 WL 1313178, *3 (D.Del. May 12, 2006), and such a determination necessarily includes the lesser included finding that plaintiffs had spoke out on a matter of public concern. See Azzaro v. County of Allegheny, 110 F.3d 968, 976 (3d Cir. 1997) (en banc). Given that the subject matter of plaintiffs' petitions was the same as their already protected speech, it is clear that applying a public concern analysis to plaintiffs' petitions also results in their being

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similarly protected. 2. But Even if a Formal Mechanism is Required, One Existed and It Was Invoked. Although not necessary under the case law and long history of the petition clause discussed above, assuming arguendo the defense position that the adoption of a formal mechanism was in fact necessary, the defense argument is still without merit as the State has adopted such formal mechanisms that directly bear upon our present case. First, the State Auditor's Office (formally known as the Auditor of Accounts) is a Constitutional office established under the Delaware Constitution of 1897, with many duties defined under the Delaware Code. See Del. Const., Art. 3, § 11; id. at Art. 3, § 21; id. at Art. 7, § 2; id. at Schedule § 7; 29 Del.C. § 2901 et seq. Its purpose is to ferret out various forms of impropriety in government and it is the very mechanism that plaintiffs invoked by their extensive participation in the Auditor's investigation. For example, the Auditor is responsible for investigating "all the financial transactions of all state agencies" 29 Del.C. § 2906(a), such as the financial transactions of the DSP and the Division of Facilities Management which wasted millions of taxpayer dollars in building the broken FTU and which has subsequently required the expenditure of millions of additional taxpayer dollars to try to fix what was not done right the first time. The law requires that the Auditor shall conduct audits to ensure "that all expenditures have been legal and proper" id. at § 2907(a) and is required to report "[a]ll illegal and unbusinesslike practices." Id. at § 2909(b)(3). Plaintiffs participated fully in this process. It is certainly no stretch to say that plaintiffs were lodging grievances with the Auditor about hazardous conditions caused by the misuse of public funds in building a broken facility.8 Second, the Governor and members of the legislature formally requested that the Auditor

Thus, it is clear that the defense's own purported requirement that petitions be directed to an entity "marked with the government's ... imprimatur" (DAB at 1), has been fulfilled.

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investigate the conditions at the FTU - "to look at the complete range scenario from the building [process] right through to the actual [ ] close of the range"- thus establishing the specific mechanism that plaintiffs invoked by their extensive participation. (Rothenburger 2411).9 Third, and alternatively as to the e-mails and other expression sent by Sgt. Foraker, is the existence and adoption of a highly rigid and structured chain of command in the paramilitary DSP, (W. Warren 326; Baylor 515-16; G. Warren 1166-67; Foraker 1515-16; Yeomans 2088-89), an organization which "is run more like the military services" than a typical private employer. (G. Warren 1166-67). In such an organization, the formal grievance procedure is the chain of command itself - a procedure followed by plaintiffs. Plaintiff Cpl/3s Price and Warren raised their health and safety concerns to Sgt. Foraker. Sgt. Foraker on behalf of himself and his men then raised these same health and safety concerns to Lt. Davis and Capt. Warren. Plaintiffs followed the chain of command. Indeed, had they not, they would have been charged with insubordination and disciplined. In the DSP, where the chain of command is paramount, formal grievances are to be lodged by means of raising them up through the chain of command, as plaintiffs did in our present case.10 (See PX40-44; B236-243).11
9

Plaintiffs note that although not directly on point with testimony given to an Auditor, the Supreme Court has observed in the similarly helpful context of courtroom testimony, that "public policy ... requires that the paths which lead to the ascertainment of truth should be left as free and unobstructed as possible." Briscoe v. LaHue, 460 U.S. 325, 333 (1983). That is why the Third Circuit has held that "court testimony, whether compelled or voluntary, is always a matter of public concern." Swartzwelder v. McNeilly, 297 F.3d 228, 238 (3d Cir. 2002). The Circuit has justified such holdings because of "[t]he utility of uninhibited testimony and the integrity of the judicial process would be damaged if we were to permit unchecked retaliation for appearance and truthful testimony." Green v. Phila. Hous. Auth., 105 F.3d 882, 887 (3d Cir. 1997). The "judicial interest in attempting to resolve disputes by arriving at the truth would be in jeopardy." Id. As a matter of public policy, plaintiffs respectfully submit that similar reasoning applies to their expressions to the Auditor, who also was trying to ascertain the truth. The form of these grievances also is important. Plaintiffs lodged their grievances by e-mail as well as orally up the chain of command. Such e-mails are the functional equivalent, Ferrone, 2006 WL 1669988, *7, of the letters in McDonald, supra, White, supra, and Brownsville, supra, discussed in Argument II.C.1. above. Appendix references are to Plaintiffs' `Appendix to their Answering Brief in Opposition to the Defense Motion for Judgment as a Matter of Law or, in the Alternative, to Amend the Judgment or for a New Trial.' Because of its size, the Appendix was filed in hard copy only. It is the Appendix referenced
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Plaintiffs do however agree with the defense assertion that petitions must be directed to those government individuals or agencies which appear to be in a position to help rectify the perceived grievance. (DAB at 4).12 But under the facts of our case, both the State Auditor and the State Police plainly qualify as such agencies in a position to help rectify the many problems at the broken FTU. The State Auditor was the government office empowered by the Constitution and state statute to investigate the abuse and misuse of public funds pertaining to fiascos like the FTU. Similarly, the State Police was plaintiffs' employer. From plaintiffs' vantage point at the low end of the chain of command, their employer and commanding officers in the chain of command who had placed them in such a hazardous working environment would be very first individuals to whom they would direct their grievances. E. The Determination of What Constitutes a `Petition' Does Not Depend on the Status of the Speaker Either. Contrary to the defense claims, it is clear that the determination of what constitutes a `petition' does not depend on the status of the speaker of the expression at issue. For example, it is well established that what constitutes 'speech' does not change depending on whether it is `speech' by a public employee vs. 'speech' by a private citizen. Instead, the status of the speaker simply determines the applicable mode of analysis that attaches thereafter - the analysis which determines whether that 'speech' is ultimately going to be protected by the First Amendment against government retaliation. Take for example a public employee who writes a letter to the editor of the local newspaper criticizing corruption in government. Regardless of whether this 'speech' is ultimately found to be protected under the public concern vs. disruption Pickering balancing test, no one

by the Notice of Filing of Paper Documents, found at D.I. 218. Presumably, a petition unreasonably made in bad faith to a government body not in a perceived position to help address the specific grievance at issue may fall under the `sham' exception to petition clause protections.
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would dispute that such a letter constitutes 'speech.' Contrast that with a private citizen who writes the same letter to the editor. Such a letter also would constitute 'speech,' but would not be subject to any kind of balancing because of the differing governmental interests involved when a private citizen speaks. See, e.g. Eichenlaub v. Township of Indiana, 385 F.3d 274, 284 (3d Cir. 2004) (the "rationale for a public/private concern distinction that applies to public employees simply does not apply to citizens outside the employment context.").13 In the same way, what is recognized as being a 'petition' does not change depending on whether it is a `petition' by a public employee vs. a `petition' by a private citizen. The expression that constitutes a 'petition' does not change based on the source status of the speaker. Instead, the private citizen vs. public employee status distinction only becomes relevant when determining the applicable mode of analysis that applies to determine whether the `petition' receives protection. Whereas a petition by a private citizen would presumably receive close to absolute protection against government retaliation because of the differing interests of the government involved, the same petition by a public employee is subject to the 'sham' exception test established by the Third Circuit in San Filippo. Take for example a public employee who files a lawsuit, challenging government corruption. Regardless of whether this `petition' is ultimately found to be protected from retaliation under the `sham' petition test, it still unquestionably constitutes a `petition,' albeit a possibly unprotected one. Similarly, consider a public employee who sends a letter to the FBI, asking them to investigate and root out government corruption in his local government employer. Regardless of whether this 'petition' is ultimately found to be protected under `sham' petition test,

Absent some clear and present danger, Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949), or a true threat, Virginia v. Black, 538 U.S. 343, 359 (2003), contained in the letter from the private citizen, one would be hard pressed to imagine a situation where such a letter would not receive absolute First Amendment protection.

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it still constitutes a `petition.' The status of the petitioner distinction is what was meant by the Third Circuit when it explained that "the scope of the petition right depends upon the context in which the right is exercised." San Filippo, 30 F.3d at 438; accord id. ("[t]he nature of the limitation upon the petition right depends upon context."). As explained in Argument II.C. above, the determination of whether an expression is a `petition,' can be made from analyzing the nature of the expression itself and from analyzing the history of the petition clause. But as the San Filippo Court explained, the next step is whether that `petition' receives protection, and the scope of that protection depend upon the context in which the petition occurs - such as a petition by a private citizen vs. a petition by a public employee. Therefore the defense claim that the status of the petitioner determines whether a `petition' is a `petition' is misplaced. (DAB at 5). Whether a petitioner is a government employee or a citizen is immaterial to the question of whether a `petition' has been made. Certainly plaintiffs' written statements to the Auditor, their oral statements, their concise packet of key documents and the eleven voluminous binders were historic petitions and their status as public employees does not alter this fact. F. Summary. "[W]hen one files a "petition" one is addressing government and asking government to fix what ... government has broken or has failed in its duty to repair." San Filippo, 30 F.3d at 442; accord Anderson, 125 F.3d at 162. Plaintiffs "sounded the alarm" (Foraker 1405) up the chain of command because of the health and safety problems at the FTU. (W. Warren 255, 220-22). "It was obviously dangerous ... [and] it was a Hazmat site." (Foraker 1485). They spoke out because they were concerned, not only for their own health and that of their families, but also for the health and safety of everyone who had to work, train or operate in the FTU, such as recruits, law enforcement officers and even the civilian citizens. (W. Warren 221-22). They were "trying to protect" those

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who worked and trained there. (Foraker 1484-85). Plaintiffs spoke to the State Auditor because "[w]e were hopeful that the state auditor would help us fix our range." (Foraker 1430). [I]n my heart, I knew it was the right thing to do. We wanted them to come in, and we wanted, especially with these auditor investigators, we wanted to show them what was wrong with the range. All we were asking for is that the state fix the problem so that we can work in a safe, healthy environment. That's all we were asking for. (Price 971). Plaintiffs wanted to protect the health and safety of all who worked at the range. My plea is not solely for myself. It is for every Delaware State Trooper as well as all other law enforcement officers that have participated and will participate in shooting activities at the range. (PX22; B215). Plaintiffs also were concerned because they were falsely "[b]eing blamed for the downfall of the operation" at the FTU and they wanted to defend themselves. (W. Warren 307; PX22; B215). The range was broken. Plaintiffs wanted the government's help getting it fixed and protecting those who were being injured by the broken building. They acted on those concerns and petitioned the government accordingly. Thus, it is clear that plaintiffs engaged in First Amendment `petitioning' when they spoke to the State Auditor and raised their grievances up the chain of command about the health and safety disaster at the FTU. Moreover, because their petitions were not shams, they receive First Amendment protection from retaliation. III. GARCETTI DOES NOT AFFECT PLAINTIFFS' FIRST AMENDMENT PETITION CLAUSE CLAIMS. A. Plaintiffs' Petitions Were Not Made Pursuant to their Job Duties. As explained in plaintiffs' recently filed Answering Brief on the merits, plaintiffs were firearms instructors, in charge of teaching recruits, Troopers and other law enforcement officers how to shoot various firearms and also teaching them tactical training. (D.I. 216 at 2). They were not in charge of the hazardous conditions at the FTU - such as the poisonous air quality - that was the admitted responsibility of the Department of Facilities Management. (Furman 2343, 2348-50). Plaintiffs

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job duties did not require them to petition the government about hazardous working conditions such as unsafe levels of lead, copper, zinc, tin, arsenic and nitroglycerine in the air that were being breathed in by all who trained at the FTU. Instead, their job duties required them to teach people tactics and firearms training. Accordingly, plaintiffs petitions to the government about hazardous working conditions were clearly not required by their job duties. B. Garcetti Has No Impact Upon Third Circuit Petition Clause Jurisprudence. In the same way, the defense position that Garcetti impacts upon Third Circuit petition clause precedent does not withstand scrutiny. 1. Garcetti Was a Free Speech Case. First, as review of the Opinion makes clear, Garcetti was a free speech case and nowhere does it discuss, reference or otherwise make mention of the separate petition clause. As discussed at length above, the petition clause has its own particular constitutional focus, as well as an independent pedigree and history, apart from its brother, the free speech clause. 2. The Portion of the Free Speech Analysis Affected by Garcetti Has No Analogue in Third Circuit Petition Clause Jurisprudence. Second, the portion of the free speech analysis affected by Garcetti has no analogue or parallel in Third Circuit petition clause law. Defendants confusingly claim that Garcetti adds an additional third step to free speech protected activity analysis. In other words, in addition to (1) the `public concern' determination and (2) the Pickering disruption balancing, there purportedly is now a third step, (3) a Garcetti speech as a citizen nuance, that comes before the public concern one. But Garcetti itself explicitly rejects this. The Supreme Court stated that the protected activity determination still contains only "two inquiries" and the Garcetti nuance is simply a part of the public concern analysis. Garcetti, 126 S.Ct. at 1958. The first requires determining whether the employee spoke as a citizen on a matter of public concern.

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Id.14 The second step still remains the Pickering balancing test. Id. Thus, as the Supreme Court has made clear, the speech as a citizen nuance is simply part of the public concern free speech analysis. Consequently, as discussed in the opening brief (OB at 18-19) and as exhaustively explained by the Third Circuit in San Filippo, 30 F.3d at 434-43, Garcetti does not apply to the petition clause because there is no public concern analysis or disruption balancing under Third Circuit petition clause law. Instead, matters of purely private concern are protected, as long as the petition is not a sham. See, e.g. id. at 440, 443; Hill, 411 F.3d at 126; Brennan, 350 F.3d at 417; We, 174 F.3d at 330 n.2. Thus, because there is no public concern step - which is where the speech as a citizen requirement comes into play - Garcetti is never triggered. C. The Sole Area Upon Which Plaintiffs and Defendants Agree. Surprisingly, it appears that plaintiffs do in fact whole-heartedly agree with one assertion made by the defense. Defendants have asked the Court to be guided on the petition clause issue by a case currently pending in the Southern District of New York, captioned as Brewster v. City of Poughkeepsie, C.A.No. 04-4204-CM (S.D.N.Y.). Plaintiffs urge the same. Following on the heels of Garcetti, the Brewster court issued a written opinion, dismissing that plaintiff's free speech retaliation claim because the speech at issue was required by job duties. Brewster v. City of Poughkeepsie, 2006 WL 1676143 (S.D.N.Y. June 8, 2006). No where in the written opinion did the Brewster court address or make mention of the petition clause. Not to be deterred, defendants scavenged for the Brewster Complaint and appended it to their brief. Taking a large logical leap, the defense represented to the Court that even though the

That this is part of the same step should come as no surprise. The Supreme Court has repeatedly discussed the citizen speech requirement as being part of the public concern analysis since the 1960s. See, e.g. Pickering, 391 U.S. at 568; Connick v. Myers, 461 U.S. 138, 142 (1983), 461 U.S. at 142. Garcetti simply explained what `speech as a citizen' means.

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Southern District of New York repeatedly stated it was addressing the free speech claim, that somehow that court must also have dismissed Brewster's petition clause claim because Brewster had a petition clause claim in her Complaint. Unfortunately for defendants, plaintiffs have pulled the docket in Brewster off of Pacer and appended it to this Reply brief. (Tab A). The court docket tells a remarkably different story. The docket reveals that despite the dismissal of the free speech claim, contrary to defense representations, the petition clause claim survived and was submitted to the jury. Although the jury ultimately returned a verdict against the plaintiff under the petition clause (presumably on a factual finding of a lack of causation), it is plainly apparent that the Southern District submitted the petition clause claim to the jury. This is evidenced by looking at the unmarked Minute Entry for June 23, 2006, and by looking at jury verdict itself, also on June 23rd . Accordingly, it is clear that the sole case cited by the defense in support of the proposition that Garcetti also applies to petition clause claims actually stands for the opposite proposition.15 D. Summary. For the aforementioned reasons, the recent Garcetti decision does not impact on plaintiffs' petition clause counts - which independently sustain the verdict. CONCLUSION For the reasons discussed above and in the opening brief, by petitioning the State Auditor's Office and the Divisional chain of command, plaintiffs clearly engaged in First Amendment protected petition clause activity. Similarly, Sgt. Foraker's earlier lawsuit also is entitled to petition clause protection.

The defense argument in this regard also ignores the fact that the Second Circuit follows a different line of petition clause jurisprudence than the Third Circuit. See, e.g. White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1059 (2d Cir. 1993) (noting that petition clause claims in the Second Circuit receive the same analysis as free speech claims).

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Respectfully Submitted, THE NEUBERGER FIRM, P.A.

/s/ Stephen J. Neuberger THOMAS S. NEUBERGER, ESQ. (#243) STEPHEN J. NEUBERGER, ESQ. (#4440) Two East Seventh Street, Suite 302 Wilmington, Delaware 19801 (302) 655-0582 [email protected] [email protected]

MARTIN D. HAVERLY, ESQ. (#3295) MARTIN D. HAVERLY, ATTORNEY AT LAW Two East Seventh Street, Suite 201 Wilmington, DE 19801 (302) 654-2255 [email protected] Dated: July 14, 2006 Attorneys for Plaintiffs

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Unreported Opinions

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--- F.Supp.2d ------ F.Supp.2d ----, 2006 W L 16 761 43 (S.D.N.Y .) (Cite as: --- F.Supp.2d ----)

Page 1

Briefs and O ther Related Do cuments Only the Westlaw citation is currently available. United States District Court,S.D. New Yo rk. Ibis B REW ST ER , Plaintiff, v. TH E CITY O F POU GH KE EP SIE , Defendant. No. 04 C IV. 4204 (CM ). May 8, 2006. Background: Former city parking enforcement agent brought action against city, alleging, inter alia, First Amendm ent retaliation claim o n basis that city prevented her from filing criminal charges against citizens with whom she had confrontations, and ultimately terminated her because of her police officer husband's criticism of police chief's decision to dismiss two pending traffic summonses he had issued.

268V(B) Mu nicipal Dep artments and Officers Thereof 268k179 Police 268k185 Suspension and R emo val of Policemen 268k185(1) k. Grounds for Removal or Susp ension. Most Cited Cases Police officer's criticism of p olice chief's decisio n to dismiss two pending traffic summonses he had issued related to his daily professional activities, which included determining whether sufficient evidence existed to prosecute pending traffic tickets, and, thus, officer's criticism was not protected speech under the First Am endment. U.S.C.A. Const.Amend. 1. Police officer's criticism of p olice chief's decisio n to dismiss two pending traffic summonses he had issued related to his da ily professional activities, which included determining whether sufficient evidence existed to prosecute pending traffic tickets, and, thus, officer's criticism was not protected speech under the First Am endment. U.S.C.A. Const.Amend. 1.

Holding: The District Court, McM ahon, J., held that husband's criticism related to his daily professional activities, and, thus, it was not protected speech under the First A mendme nt. Retaliation claim dismissed. Constitutional Law 92 90.1(7.2)

Steven Thomas Sledzik, Jones Sledzik Garneau & Nardone, LL P, Sc arsda le, NY , for Plaintiff. David Lewis Posner, McCabe & Mack LLP, Poughke epsie, NY , for Defendant. M EM ORAN DUM DECISION AND ORD ER DISM ISSING PLAINTIFF'S FIRST AM EN DM EN T R ETA LIA TIO N C LA IM MCMAHON, District Judge. *1 Plaintiff Ibis Brewster, brings this action against the City of Po ughke epsie alleging, inter alia, First Amendm ent retaliation. She claims, inter alia, that she was prevented from filing criminal charges against citizens with whom she had confrontations, and ultimately was terminated from her position as a civilian Parking Enforcement Agent, as a result of her husband's (then fiancé's), criticism of the Police Chief's decision to dismiss two pending traffic summonses issued by her husband, Officer Joseph Brewster. In response to the Chief's January 28, 2003, verbal request that Officer

92 Constitutional Law 92V Personal, Civil and Political Rights 92k90 Freedo m of Speech and of the Press 92k90.1 Particular Expressions and Limitations 92k90.1(7) Labor M atters 92k90.1(7.2) k. Pub lic Em ploym ent. Most Cited Cases M unicipal Corporations 268 185(1)

268 Municipal Corpo rations 268V Officers, Agents, and Employees

© 2006 Tho mson/W est. No C laim to Orig. U .S. Govt. Wo rks.

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--- F.Supp.2d ------ F.Supp.2d ----, 2006 W L 16 761 43 (S.D.N.Y .) (Cite as: --- F.Supp.2d ----)

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Brewster dismiss the tickets, and the Chief's February 25, 2003, written directive that the tickets be dismissed, Officer Brewster (by counsel) wrote a letter dated February 26, 2003, to the Chief and Deputy Chief of Police "strongly object[ing] to the dismissals." By a letter dated March 3, 2003, Officer Brewster (again by counsel) com plained to the District Attorney that the Chief had "abuse[d] his discretion," and requested that the District A ttorney's office investigate the matter to determine whether the Chief's actions constituted official misconduct. At the final pre-trial conference in this matter, held on June 2, 2006, I asked counsel to submit letter briefs addressing the implications of the Supreme Court's recent decision in Garcetti v. Ceballos, --- U.S. ----, 126 S.Ct. 1951, --- L.Ed.2d ----, 2006 WL 1 458026 (M ay 30, 2006), on plaintiff's First Amendment retaliation claim. I now dismiss plaintiff's claim under the rule of law articulated in Ga rcetti. In Ga rcetti, the Supreme Court held tha t, "W hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate the ir com munications from employer discipline." Id. at ----, 2006 WL 1458026, at *8. The controlling factor in the Court's decision was that Responde nt Ceba llos' expressions were made, not as a private citizen as "part of civic discourse," but rather pursuant to his o fficial duties. Id. The facts in Ga rcetti are striking similar to those in the case at bar. C eballos, a de puty district attorney, recommended dismissal of a pending criminal matter, upo n learning that an affidavit used to obtain a critical search warrant contained material misrep resentations. W hen his supervisors refused to dismiss the charge, Ceb allos testified on behalf of the defense at a hearing on the defendant's motion to challenge the warrant. Thereafter, Ceballos was allegedly subjected to a series of retaliato ry employment action s, includ ing reassignment to a different position, transfer to another courthouse, and denial of a promotion. Joseph Brewster was a police officer. His speech related to his supervisor's decision to dismiss two

pending traffic summonses he had issued. Officer Brewster's February 26 letter to the Chief and Deputy Chief of Police reiterated Brewster's opinion that the tickets should not be dismissed, and emphasized that the individual whose tickets he was directed to dismiss was "guilty of both violations," that the "charged individual ackno wledged traveling more than d oub le the posted speed limit and, according to the evidence available, clearly violated the provisions of law which prohibit crossing a double yellow line." Officer Brewster's March 3 letter to the District Attorney complained that, "Despite the operator's ad mission to speeding and video surveillance confirming that the operator crossed onto, if not over, the double yellow line in violation of the vehicle and traffic law, Chief Knapp has demanded that Officer Brewster dismiss the summ ons." *2 Like Ceba llos' memo exp ressing his position on the proper disposition of a pending criminal case, Officer Brewster's letters to the Chief and Deputy Chief of Police and to the District Attorney related to his "da ily professional activities," Garcetti, --- U.S. at ----, 126 S.Ct. at ----, 2006 W L 1458026 at *8, which included determining whethe r sufficient evidenc e existed to prosecute pending traffic tickets. Accordingly, Officer Brewster's expressions are not protected speech, and cannot form the basis of a retaliation claim. The only difference between the Ga rcetti case and this case is that Ceballos claimed that he was retaliated against on account of his own speech, while plaintiff Brewster asserts that she was retaliated against on account of her hu sba nd's speech. This distinction is of no moment. There is no question that, if Officer Brewster does not have a ca use of action based o n his own unprotected spe ech-an d he d oes not-his wife certainly cannot state a claim for retaliation based on that same unprotected speech. For the foregoing reasons, plaintiff's First Amendment retaliation claim is d ismissed . Trial will proceed as scheduled on plaintiff's remaining claims. This constitutes the decision and o rder of the C ourt. S.D.N.Y.,2006.

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Bre wster v. C ity of Po ughke epsie --- F.Supp.2d ----, 2006 W L 16 761 43 (S.D.N.Y .) Briefs and O ther Related D ocuments (Back to top) · 2 00 6 W L 1416633 (Trial Motion, Mem orandum and Affidavit) Mem orandum of Law in Opposition of Defenda nt's in Limine Motion (Apr. 6, 2006) Original Image of this Document (PDF) · 7:04cv04204 (Docket) (Jun. 4, 2004) END OF DOCUMENT

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Briefs and O ther Related Do cuments Only the Westlaw citation is currently available. United States District Court,W.D. Pennsylvania. Rock FE RRO NE and Rock Airport of Pittsburgh, L.L.C ., Plaintiff v. Dan ON OR AT O, ind ividually and officially, Den nis Davin, Individually and Officially, and Allegheny County, Defendants No. CIVA 05-303. June 13, 2006.

t h e c a s e , toge the r w ith the R e p o r t a nd Recomm endation, and objections thereto, the following order is entered: AN D N OW , this 13 th day of June, 2006; IT IS HEREBY OR DE RED that the Defendants' Motion to Dismiss is granted as to Counts II and III, denied as to Count I, denied without prejudice as to Counts IV, V, VI, VII and V III. The Report and Recommendation of M agistrate Judge Sensenich, dated, May 19, 20 06 is adopted as the opinion of the Co urt.

Gianni Floro, Pittsburgh, PA , for Plaintiffs. Caroline Liebenguth, Michael H. W ojcik, Allegheny County Law Department, Pittsburgh, PA, for Defend ants. Re: Doc. # 23 AMB ROSE, J. ORDER *1 On March 9 , 200 5, this case was referred to United States Magistrate Judge Ila Jeanne Sensenich for pretrial proceed ings in accordance with the Magistrates Act, 28 U.S.C. §§ 636(b)(1)(A) and (B), and Rules 72.1.3 and 72 .1.4 of the Local Rules for M agistrates. The Magistrate Judge's Report and Recommendation filed on M ay 19, 200 6, recommended that the Defend ants' Motion to Dismiss (D oc. # 18) be granted as to Counts II and III, denied as to Count I, and denied without prejudice as to Counts IV, V, VI, VII and V III. The parties were allowed (10) days from the date of service to file objections. Service wa s mad e on all parties. Objections have not been filed to the Report and Recom mendation. After de novo review of the pleadings and d ocuments in

Doc. # 18 SENSENICH, Magistrate J. MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION I. RECOMMENDATION

It is recommended that Defendants' Motion to Dismiss the complaint be granted as to Counts II and III; denied as to Count I; and denied without prejudice as to Counts IV, V, VI, VII and V III.

II. REPORT Rock Ferrone and Rock Airport of Pittsburgh, L.L.C., hereinafter "Plaintiffs", filed this case against Allegheny County and two county officials, hereinafter collectively "Defendants". (Compl., Doc. # 1 at ¶¶ 17-3 0.) The two officials, Dan Onorato, the Chief Executive of Allegheny C ounty and D ennis Davin, the Director of the Department of Economic Developm ent of Allegheny County, are named as Defendants in their individual and official capacities. (Id. at ¶¶ 20-27). Plaintiffs allege state and federal constitutional

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violations, federal statutory claims, and various state tort claims. (Id. at ¶¶ 6-7, 101-156.) They seek injunctive relief and mo netary d amages. (Id. at ¶ 8.) In th eir Motion to Dismiss, Defendants assert that Plaintiffs have failed to state a claim for relief under the Civil Rights Statutes, Sections 1983, 1985(3), and 1986, as codified in Title 42 of the United States Code. (Doc. # 18 at 2-5.) Defendants also argue that they are protected from suit on the state law claims by governmental immunity. (Id. at 4.) T hus, D efendants request that Plaintiffs' complaint be dismissed in its entirety. (Id. at 2.)

being diverted whe n De fendant Davin inform ed them that he had not rec eived certain e-mails which had been sent by Plaintiff Ferro ne. (Id. at ¶¶ 58-71.) This was confirmed when Mr. Davin and M r. Ferrone attempted to send e-mails to each other, and Mr. Ferrone received Defendant Davin's e-mails, but Defendant Davin did not receive Mr. Ferro ne's e-mails. (Id.) Plaintiffs claim that after this discovery, Defendant Davin "commented that `Dan may have blocked your e-mail, if it was the e-mail address that those `blast e-mails' were co ming fro m.' " (Id. at ¶ 72.) Plaintiffs further allege that "Mr. Ferrone then contacted a mem ber o f the Allegheny C ounty Council, who advised him that no e-mails had been received from him since before the meeting of January 4, 2005." (Id. at ¶ 76.) After this discovery, Plaintiffs assert that Mr. Onorato, while on the radio , stated to the public that Mr. Ferrone had sent him "venomous" e-mails. (Id. at ¶ 118.) Allege