Free Answering Brief in Opposition - District Court of Delaware - Delaware

Case1:04-cv-00956-GIVIS D0cument212-3 Filed 07/07/2006 Page1 0f3

Case 1:04-cv—00956-G|\/IS Document 212-3 Filed 07/07/2006 Page 2 of 3
Westlaw
--- F.Supp.2d ---- Page 1
--- F.Supp.2d —--- , 2006 WL 1676143 (S.D.N.Y.)
(Cite as: --- F.Supp.2d ---- )
Police officer's criticism of police chiefs decision to
Briefs and Other Related Documents dismiss two pending traffic summonses he had issued
O11ly the Westlaw citation is currently available. related to his daily professional activities, which
United States District Court,S.D. New York. included determining whether sufficient evidence
Ibis BREWSTER, Plaintiff} existed to prosecute pending traffic tickets, and, thus,
v. officer's criticism was not protected speech under the
THE CITY OF POUGHKEEPSIE, Defendant. First Amendment. U .S.C.A. Const.Amend. 1.
No. 04 CIV. 4204(CM).
Police officer's criticism of police chiefs decision to
May 8, 2006. dismiss two pending traffic summonses he had issued
related to his daily professional activities, which
` Background: Fomier city parking enforcement agent included determining whether sufficient evidence
brought action against city, alleging, inter alia, First existed to prosecute pending traffic tickets, and, thus,
Amendment retaliation claim on basis that city officer's criticism was not protected speech under the
prevented her from filing criminal charges against First Amendment. U.S.C.A. Const.Amend. 1.
citizens with whom she had confrontations, and
ultimately terminated her because of her police
officer husband's criticism of police chiefs decision Steven Thomas Sledzik, Jones Sledzik Gameau &
to dismiss two pending traffic summonses he had Nardone, LLP, Scarsdale, NY, for Plaintiff
issued. David Lewis Posner, McCabe & Mack LLP,
Poughkeepsie, NY, for Defendant.
Holding: The District Court, McMahon, J., held that MEMORANDUM DECISION AND ORDER
husband's criticism related to his daily professional DISMISSING PLAINTIFF'S FIRST
activities, and, thus, it was not protected speech under AMENDMENT RETALIATION CLAIM
the First Amendment. MCMAHON, District Judge.
*1 Plaintiff Ibis Brewster, brings this action against
Retaliation claim dismissed. the City of Poughkeepsie alleging, inter alia, First
Amendment retaliation. She claims, inter alia, that
Constitutional Law 92 @90_1(7_2) she was prevented from filing criminal charges
against citizens with whom she had confrontations,
Q2 Coiistitiitioiiai Law and ultimately was terminated from her position as a
_ E poisoiiai, Civii and Political Rights civilian Parking Enforcement Agent, as a result of her
Freedom Of Speech and Of the Press husbandls (then H3HCé'S), CI`ItICISH'I of th€ Police
Particular Expressions and Chiefs d€CISIOI1 to CIISIIIISS two tI`Z.fHC
Limitations summonses issued by her husband, Officer Joseph
g2k9()_ M7) Labor Mattois Brewster. In response to the Chiefs January 28, 2003,
Q2k9()_](7_2) k_ pubiio Empioymoiit verbal request that Officer Brewster dismiss the
Most Citoti Cases tickets, and the Chiefs February 25, 2003, written
directive that the tickets be dismissed, Officer
- - · Brewster (by counsel) wrote a letter dated February
Mumclpal Corporations 268 @$1850) 26, 2003, to the Chief and Deputy Chief of Police
268 Municipal Corporations "strongly object[ing] to the dismissals." By a letter
768V Officers, Agents, and Employees dated March 3, 2003, Officer Brewster (again by
iggi/[B] Municipal Departments and Officers counsel) complained to the District Attorney that the
Thereof Chief had "abuse[d] his discretion," and requested
268k1»/o Police that the District Attomey's office investigate the
Suspension and Removal of matter to determine whether the Chiefs actions
Pelieemen M constituted official misconduct.
OI Suspension. Clgsgmunds for Removal At the fmal pre-trial conference in this matter, held
© 2006 Thomson/W est. No Claim to Orig. U.S. Govt. Works.

Case 1:04-cv—00956-G|\/IS Document 212-3 Filed 07/07/2006 Page 3 of 3
--- F.Supp.2d ---- Page 2
--— F.Supp.2d —--- , 2006 WL 1676143 (S.D.N.Y.)
(Cite as: --- F.Supp.2d ---- )
on June 2, 2006, I asked counsel to submit letter *2 Like Ceballos' memo expressing his position on
briefs addressing the implications of the Supreme the proper disposition of a pending criminal case,
Court's recent decision in Garcetti v. Ceballos. -—~ Officer Brewster's letters to the Chief and Deputy
U.S. --—— , 126 S.Ct. 1951, --— L.Ed.2d ---- . 2006 WL Chief of Police and to the District Attomey related to
1458026 (May 30, 2006[, on plaintiffs First his "daily professional activities," Garcetti, -—— U.S.
Amendment retaliation claim. I now dismiss at -——— , 126 S.Ct. at —-—· , 2006 WL 1458026 at *8,
plaintiffs claim under the rule of law articulated in which included determining whether sufficient
Garcetti. evidence existed to prosecute pending traffic tickets.
Accordingly, Officer Brewster's expressions are not
In Gczrce/ti the Supreme Court held that, "When protected speech, and cannot form the basis of a
public employees make statements pursuant to their retaliation claim.
official duties, the employees are not speaking as
citizens for First Amendment purposes, and the The only difference between the Garcetti case and
Constitution does not insulate their communications this case is that Ceballos claimed that he was
from employer discipline." Irl. at ---- , 2006 WL retaliated against on account of his 0wn speech, while
1458026, at *8. The controlling factor in the Cou1t's plaintiff Brewster asserts that she was retaliated
decision was that Respondent Ceballos' expressions against on account of her husband's speech. This
were made, not as a private citizen as "part of civic distinction is of no moment. There is no question
discourse," but rather pursuant to his official duties. that, if Officer Brewster does not have a cause of
[Q action based on his own unprotected speech-and he
does not—his wife certainly cannot state a claim for
The facts in Garcetti are striking similar to those in retaliation based on that same unprotected speech.
the case at bar. Ceballos, a deputy district attorney,
recommended dismissal of a pending criminal matter, For the foregoing reasons, plaintiffs First
upon learning that an affidavit used to obtain a Amendment retaliation claim is dismissed. Trial will
critical search warrant contained material proceed as scheduled on plaintiffs remaining claims.
misrepresentations. When his supervisors refused to
dismiss the charge, Ceballos testified on behalf of the This constitutes the decision and order of the Court.
defense at a hearing on the defendant's motion to
challenge the warrant. Thereafter, Ceballos was S.D.N.Y.,2006.
allegedly subjected to a series of retaliatory Brewster v. City of Poughkeepsie
employment actions, including reassignment to a --- F.Supp.2d ---- ,2006 WL 1676143 (S.D.N.Y.)
different position, transfer to another cotuthouse, and
denial of a promotion. - Briefs and Other Related Documents (Back to top;
Joseph Brewster was a police officer. His speech •7:04cv04204 (Docket) (Jun. 4,2004)
related to his supervisor's decision to dismiss two
pending traffic summonses he had issued. Officer END OF DOCUMENT
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 acknowledged traveling more
than double 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
Attomey complained that, "Despite the operator's
admission 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 summons."
© 2006 Thomson/W est. No Claim to Orig. U.S. Govt. Works.