February 28, 2015

The 2d Circuit's Busy Week, Pt. 2

Having just reversed itself in the face of an en banc rehearing in Garcia v. John and Jane Does, the Second Circuit next addressed the case of Matthews v. City of New York. This interesting case concerns a NYPD officer's claims that his bosses punished him for complaining about a precinct-wide quota policy. Not too surprisingly, management rewarded Matthews for voicing his concerns by making his life difficult. He sued on First Amendment grounds. The district court dismissed, finding that he was acting as a public employee when he complained, rather than simply as a citizen. The Court of Appeals reversed. It's a good decision that puts a bit of a dent in the controlling Supreme Court case, Garcetti v. Ceballos.

Many people assume that the First Amendment protects everyone's right to say anything to anybody at any time without fear of reprisal. This is not only untrue but entirely unworkable. Only certain speech is protected, and only from certain employers and parties and only in certain cases. In the context of a public employee complaining about the policies or actions of the employer, if the speech does not concern matters of public concern, or if the employee was speaking in his capacity as an employee, rather than simply as a citizen, it is not protected.

There was no dispute that Matthews' complaints about the detrimental impact of quotas involved a matter of public concern. The only dispute was whether he was acting as a police officer or a citizen. It seems simple enough, he was complaining to his NYPD bosses about their NYPD policies. But Court in its opinion -- following below -- notes that his complaints were not made in the manner established for NYPD officers to report misconduct or file official complaints, but rather were made outside the normal chain of command, sometimes at public events where community feedback was invited. Thus, he was acting as a citizen and the case will proceed to trial.

It's an important decision. The existence of NYPD quotas is something that (a) appears plainly true; (b) is unhealthy for the department and the communities it serves; and yet (c) the NYPD continues to deny. The people most knowledgeable about quotas within the NYPD are the rank and file, the ones for whom the quotas were designed. They are the best source of information, and thus, in the rare occasions when they are willing to come forward and speak, they should be protected from reprisals.

Let's start with the obvious: quotas exist, regardless of what they are called. A retired patrol sergeant from Brooklyn I have known for years told me that while there were no such things as "quotas," but there were monthly "activity levels" that officers were expected to meet. Several other officers have publicly complained about quota systems. For instance, Adrian Schoolcraft, a patrol officer from the 81 precinct recorded his supervisors repeatedly threatening officers if they could make their quotas; conduct that affirms Matthews' claims about behavior in his Bronx precinct. (Excerpts from those tapes were or still are available via a series of articles by Graham Rayman in the Village Voice).

None of this ought to be surprising for a statistics-driven NYPD. If numbers are the religion, then Compstat is the bible. It is entirely reasonable for the NYPD's analytics oriented senior commanders to conclude that, given both the City's existing crime rates and the department's "broken windows" theory of policing, optimally every month a minimum of X summonses ought to be issued, a Y number of Stop and Frisks ought to be carried out, and a Z number of arrests made. Borough commanders pass this bottom line pressure on down the line.

As Matthews correctly noted, this sort of pressure leads to bad arrests, the issuance of undeserved summonses or Stop and Frisks, and antagonizes community residents. The bad arrests and uneven enforcement of laws and administrative codes undermines public faith in the police, and government in general, and exacerbates the breakdown between citizens and the state. It is important that those with the most knowledge about these policies be able to speak out when the NYPD is continuing to insist privately on their implementation while publicly denying their existence.

Until and unless the Supreme Court decides otherwise, this is a positive step for the City of New York, even if it's lawyers think differently.

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