United States District Court, S.D. New York
[Copyrighted Material Omitted]
For Craig Matthews, Plaintiff: Christopher T Dunn, Erin Beth Harrist, New York Civil Liberties Union, New York, NY.
For City of New York, Raymond Kelly, as Commissioner of the New York City Police Department, Jon Bloch, a deputy inspector in the New York City Police Department, Mark Sedran, a lieutenant in the New York City Police Department, Defendants: William Solomon Jacob Fraenkel, NYC Law Department, Office of the Corporation Counsel (NYC), LEAD ATTORNEY, New York, NY.
OPINION & ORDER
Paul A. Engelmayer, United States District Judge.
Plaintiff Craig Matthews, a member of the New York City Police Department (" NYPD" ), brings this action pursuant to 42 U.S.C. § 1983 against the City of New York, NYPD Commissioner Raymond Kelly, Deputy Inspector Jon Bloch, and Lieutenant Mark Sedran (collectively, " defendants" or " the City" ). Officer Matthews alleges that defendants violated his First Amendment rights when they, allegedly, retaliated against him after he raised concerns to the precinct's commanding officers about a policy being implemented by mid-level supervisors in his precinct. That policy allegedly required each patrol officer to meet a quota of arrests, stop-and-frisks, and summonses each month. Defendants move for summary judgment. They argue that Officer Matthews' speech is unprotected by the First Amendment, because he was speaking pursuant to his official employment duties when he reported the quota system to his commanding officers. For the reasons that follow, defendants' motion for summary judgment is granted.
I. Background and Undisputed Facts
Officer Matthews has been employed by the NYPD for 16 years. Matthews Decl. ¶ 4; Matthews Dep. 9. During the last 14 years, he has been assigned to the 42nd Precinct. Matthews Decl. ¶ 5; Matthews Dep. 9. His current rank is " Police Officer." Matthews Decl. ¶ 3.
A. Officer Matthews' Speech
The parties have stipulated that, for purposes of resolving this motion, Officer Matthews' speech occurred in the manner alleged in the Complaint. See Def. Br. 1; Pl. Br. 6 n.1; Def. Reply Br. 1 n.1.
The Complaint alleges that, beginning in 2008, mid-level supervisors in the 42nd Precinct " developed and implemented a
system of quotas mandating numbers of arrests, summonses, and stop-and-frisks." Compl. ¶ 2. To enforce these quotas, supervisors developed a system that assessed officers using color-coded reports that identified who was meeting, partially meeting, and not meeting his or her quotas. Id . The quota system in Officer Matthews' squad was further refined by his platoon commander, Lieutenant Mark Sedran. Lieutenant Sedran created a system that awarded points for " good summonses" --those that addressed hazardous behavior, such as use of a cell phone while driving--and subtracted points for non-hazardous summonses. Id . ¶ 18. Officers were allegedly under constant pressure to meet these quotas and were subject to punishment for not doing so. Id . ¶ 2.
Officer Matthews believed that the quota system violated the NYPD's core mission, and he was " unwilling to participate in a practice that would damage the communities he was entrusted to protect." Id . ¶ 19. Accordingly, in February 2009, Officer Matthews met with the precinct's commanding officer at the time, then-Captain Timothy Bugge, and informed Captain Bugge about the existence of the quota system. Id . ¶ 20. In March and April 2009, with the quota system having persisted, Officer Matthews met again with Captain Bugge. Id . In May 2009, Officer Matthews also reported the quota system to an unnamed precinct executive officer. Id . In June 2009, Captain Bugge told Officer Matthews that he had spoken with Lieutenant Sedran and that " the situation was handled." Id . ¶ 21. Nevertheless, Officer Matthews alleges, the quota system continued in secret. Id . In October 2009, Captain Bugge informed Officer Matthews that he would not interfere with how supervisors ran their platoons. At this point, Officer Matthews alleges, he concluded that it was futile to raise his concerns with Captain Bugge any further. Id . ¶ 22.
In January 2011, Officer Matthews met with then-Captain Jon Bloch, who had replaced Captain Bugge in May 2010 as the precinct's commanding officer. See Bloch Dep. 13; Bugge Dep. 13. The meeting took place in Captain Bloch's office, with two other officers present. Compl. ¶ 28. Officer Matthews explained his concerns that the quota system was (1) " causing unjustified stops, arrests, and summonses because police officers felt forced to abandon their discretion in order to meet their numbers," and (2) " having an adverse effect on the precinct's relationship with the community." Id . Officer Matthews has attested that when he raised these concerns, he did not identify any particular unjustified stop or arrest. Matthews Decl. ¶ 13.
Officer Matthews alleges that, as a result of his speech, he was subject to a campaign of retaliation. Id . ¶ ¶ 21, 25-27, 32-34, 36-38.
B. Procedural History
On February 23, 2012, Officer Matthews filed the Complaint, which brings a § 1983 claim based on alleged infringement of his First Amendment rights, and a parallel claim under the New York Constitution. Dkt. 1; see infra note 7. On March 16, 2012, defendants moved to dismiss, arguing
that Officer Matthews' speech was unprotected because it was made pursuant to his official employment duties--to wit, his inherent duty to enforce the law--and therefore that his § 1983 claim must fail. Dkt. 12. Honorable Barbara S. Jones, to whom this case was then assigned, granted defendants' motion. She reasoned: " Matthews' complaints to his supervisors are consistent with his core duties as a police officer, to legally and ethically search, arrest, issue summonses, and--in general--police." Matthews v. City of N.Y., No. 12 Civ. 1354 (BSJ), 2012 WL 8084831, at *3 (S.D.N.Y. Apr. 12, 2012).
On appeal, the Second Circuit vacated that dismissal. It stated:
The record in this case is not yet sufficiently developed . . . to determine as a matter of law whether Officer Matthews spoke pursuant to his official duties when he voiced the complaints made here in the manner in which he voiced them. See Garcetti v. Ceballos , 547 U.S. [410,] 424-26, 126 S.Ct. 1951, 164 L.Ed.2d 689 [(2006)] (distinguishing between giving employees an internal forum for their speech and making certain speech a duty of employment). As we have recently observed, " whether a public employee is speaking pursuant to h[is] official duties is not susceptible to a brightline rule." Ross v. Breslin , 693 F.3d 300, 306 (2d Cir. 2012). The matter may require some inquiry into " the nature of the plaintiff's job responsibilities, the nature of the speech, and the relationship between the two." Id . Here, some discovery as to these matters is necessary before it can be decided whether Matthews can or cannot pursue a First Amendment retaliation claim in this case.
Matthews v. City of N.Y., 488 F. App'x 532, 533 (2d Cir. 2012) (summary order).
Upon remand, the case was reassigned to this Court. On December 17, 2012, the Court held a conference with the parties to discuss fashioning a targeted discovery plan keyed to the factual issue identified by the Second Circuit. The parties thereupon submitted, and the Court approved, a joint case management plan providing for plenary document discovery, but limiting depositions to witnesses with knowledge of Officer Matthews' job responsibilities as they relate to the speech at issue. Dkt. 29.
On May 20, 2013, as contemplated at the December 17, 2012 conference, defendants filed a motion for summary judgment. They argued, this time based on the factual record developed in discovery, that Officer Matthews' speech was made pursuant to his official employment duties. See Dkt. 36 (" Def. Br." ). On June 7, 2013, Officer Matthews opposed that motion. Dkt. 39 (" Pl. Br." ). On June 14, 2013, defendants filed a reply. Dkt. 45 (" Def. Reply Br." ). On July 19, 2013, the Court heard argument.
C. Officer Matthews' Employment Duties
As contemplated by the Second Circuit in its summary order and this Court in its case management plan, discovery focused on the nature of Officer Matthews' employment duties. The evidence adduced on that point is as follows.
Section 202-21 of the NYPD Patrol Guide sets forth the " Duties and Responsibilities" of a Police Officer. See Harrist Decl. Ex. 2. It lists 20 specific duties. It
does not, however, describe, or purport to describe, the day-to-day activities of a Police Officer. Officer Matthews attested that his regular activities, which occupy 95% of his time on the job, involve:
(1) going on radio runs, which are responses to 911 calls in the precinct, in addition to '311' requests, and requests that come through the station house telephone switchboard, (2) patrolling the streets and vertical patrolling of local housing, (3) filling out complaint reports and additional forms relating to criminal activity, lost property, and missing persons, including interviewing witnesses, (4) responding to traffic accidents, (5) transporting prisoners to and from the precinct house, courts, and hospitals, and (6) doing community visits with local businesses and organizations.
Matthews Decl. ¶ 6; see also Matthews Dep. 10 (" Q: [H]ow would you describe your job, the job of a police officer? A: I enforce the law." ).
Particularly relevant here, Section 207-21 of the Patrol Guide addresses the duty of a member of the NYPD to report allegations of " corruption or other misconduct against members of the service." It states, in pertinent part:
All members of the service must be incorruptible. An honest member of the service will not tolerate members of the service who engage in corruption or other misconduct. All members of the service have an absolute duty to report any corruption or other misconduct, or allegation of corruption or other misconduct, of which they become aware .
Fraenkel Decl. Ex. B (emphasis added). Section 207-21 defines " corruption/other misconduct" as " [c]riminal activity or other misconduct of any kind including the use of excessive force or perjury that is committed by a member of the service whether on or off duty." Id . It also provides a procedure for reporting such misconduct to the Internal Affairs Bureau. It further states that " [f]ailure to report corruption, other misconduct, or allegations of such act is, in itself, an offense of serious misconduct and will be charged as such." Id .
In deposition testimony, the parties offered differing interpretations of the extent to which an officer has a duty to report " misconduct" under Section 207-21. Officer Matthews testified that his understanding of that provision is that he is not obligated to report every violation of the Patrol Guide, only those that amount to criminal misconduct, such as corruption, bribery, or excessive force. See Matthews Dep. 14, 19, 21, 24-25, 33, 37, 39. He testified that he acquired that understanding during his training at the police academy, id . at 24, 34, but he could not recall more specifically where in that training he learned of that limit on his duty to report, id . at 39. Commissioner John Beirne, the City's Rule 30(b)(6) witness, offered a different understanding of Section 207-21. He testified that whether an officer has a duty to report a particular event or practice generally turns on whether the officer reasonably believes it to be misconduct, and on the officer's " common sense." See ...