10-0859-cv Jackler v. Byrne

UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2

- - - - - - 3 August Term, 2010 4 (Argued: February 24, 2011 Decided: July 22, 2011) 5 Docket No. 10-0859-cv 6

_________________________________________________________ 7 JASON M. JACKLER, 8 Plaintiff-Appellant , 9

- v. - 10 Police Chief MATTHEW T. BYRNE, Indivi dually and in his Official Capacity, 11 Lt. PAUL RICKARD, in hi s Individual and Official Capacity and Lt. PATRICK 12 FREEMAN, in his Individual and Official Capacity, 13 Defendants-Appellees

. 14

_________________________________________________________ 15 Before: KEARSE, SACK, and KATZMANN, Circuit Judges

. 16 Appeal from a judgment of the United States District Court for the Southern District 17 of New York, Cathy Seibel, Judge , dismissing, pursuant to Fed. R. Civ. P. 12(c), complaint brought 18 under 42 U.S.C. § 1983 principally asserting First Amendment claims alleging retaliation against 19 plaintiff as a probationary police officer for his refusals to make false statements in an investigation 20 into a civilian complaint charging use of excessive force by a police officer. See708 F.Supp.2d 319 21 (2010). 22 Vacated in part and remanded. 23 Judge Sack concurs in the panel opinion and files a separate concurring opinion. 242 STEPHEN BERGSTEIN, Chester, New York (Bergstein & 1 Ullrich, Chester, New York, James E. Monroe, Dupee & 2 Monroe, Goshen, New York, on the brief), for Plaintiff3 Appellant

. 4 BRIAN S. SOKOLOFF, Westbury, New York (Mark A. Radi, 5 Sokoloff Stern, Westbury, New York, on the brief), for 6 Defendants-Appellees

. 7 SCOTT A. KORENBAUM, New Yo rk, New York (Lawrence 8 A. Vogelman, Nixon, Raiche, Manning, Vogelman & Leach, 9 Manchester, New Hampshire, Andrew B. Reid, Springer & 10 Steinberg, Denver, Colorado, of counsel), filed a brief on 11 behalf of Amicus Curiae National Police Accountability 12 Project in support of Plaintiff-Appellant

. 13 DEVALA A. JANARDAN, Bethesda, Maryland, filed a brief 14 on behalf of Amicus Curiae International Municipal Lawyers 15 Association in support of Defendants-Appellees

. 16

KEARSE, Circuit Judge : 17 Plaintiff Jason M. Jackler, a former pr obationary police officer in Middletown, New 18 York ("Middletown" or the "City"), appeals from a judgment of the United States District Court for 19 the Southern District of New York, Cathy Seibel, Judge , dismissing his complaint, brought under 42 20 U.S.C. § 1983, alleging principally that defendant Matthew T. Byrne, Chief of the Middletown Police 21 Department ("MPD" or the "Department"), and othe r members of the Departme nt violated his First 22 Amendment right to freedom of speech by causing th e termination of his employment in retaliation 23 for his refusals to make false statements in connection with an investigation into a civilian complaint 24 alleging use of excessive force by a Department officer. To the extent pertinent to this appeal, the 25 district court granted defendants' motion for j udgment on the pleadings on the basis of Garcetti v. 263 Ceballos , 547 U.S. 410 (2006), and Weintraub v. Board of Education , 593 F.3d 196 (2d Cir.) 1 ("Weintraub "), cert. denied , 131 S. Ct. 444 (2010), which held thatwhen a public employee, pursuant 2 to his official duties, makes statements that haveno relevant analogue to speech by civilians who are 3 not government employees, the government employee's speech is not protected by the First 4 Amendment. On appeal, Jackler argues principally that Garcettiand Weintraub do not preclude First 5 Amendment protection for his refusals to make false statements. For the reasons that follow, we agree 6 and vacate the judgment insofar as it dismissed Jackler's First Amendment retaliation claims. 7

I. BACKGROUND 8

The following description of the events rec ounts the allegations in the complaint--and 9 the contents of exhibits attached to it--in the light most favorable to Jackler and draws all reasonable 10 inferences in his favor, as required in a reviewof a Rule 12(c) dismissal of his action. See , e.g. , 11 Hayden v. Paterson , 594 F.3d 150, 160 (2d Cir. 2010); Gu mer v. Shearson, Hammill & Co. , 516 F.2d 12 283, 286 (2d Cir. 1974) (on a Rule 12( c) motion to dismiss a complain t, "the well-pleaded material 13 facts alleged in the complaint must be taken as admitted"). 14

A. The Complaint's Assertion of First Amendment Claims 15 Jackler became a probationary police officer in MPD in January 2005. Byrne was the 16 Chief of Police and senior administrator in chargeof MPD's daily operations ; defendants Paul Rickard 17 and Patrick Freeman were MPD lieutenants and admini strators. Decisions as to the hiring, retention, 18 or promotion of MPD personnel were made by the City's Board of Police Commissioners (or "Board") 194 on the basis of information and recommendations provided by Byrne, Rickard, and Freeman. For 1 nearly a year, Jackler was regarded as a good probationary officer. 2

1. The Events of January 5, 2006 3 On January 5, 2006, Jackler was dispatched to a "Mobil on the Run" convenience store 4 in Middletown to assist MPD Sergeant Gregory W. Metakes in the arrest and transportation of one 5 Zachary T. Jones. When Jackler arrived, Jones was handcuffed with his hands behind his back. 6 Jackler opened the rear driver-side door of his patrolcar, and Metakes placed Jones in the back seat. 7 As Metakes closed the door, Jones called Metakes a "dick," loudly enough for both Jackler and 8 Metakes to hear. Metakes immediately reopened th e door and struck the still-handcuffed Jones in the 9 face. 10 At the police station later that night, the MPD desk officer, Police Officer Sal Garretto, 11 asked Jones about a large bump on Jones's head and abrasions on his face. Jones responded that 12 during the arrest Metakes had, inter alia , smashed Jones's head into the ground, and that after 13 handcuffing and placing Jones in the police car and hearing Jones call him a "dick," Metakes had 14 punched Jones in the face. Both Garretto and MPD Lieutenant Warycka, the supervisor on duty that 15 night, noted in written reports that they observed injuri es to Jones's face. Jones stated that he wanted 16 to talk to someone about making a complaint. 17 MPD had a written policy prohibiting the use of unnecessary or unjustified force. 18 MPD Departmental Order number 03-01 date d March 21, 2003, entitled "USE OF PHYSICAL 19 FORCE" ("MPD Order 03-01" or "MPD Directive")--a copy of which is attached to the complaint as 20 Exhibit A--set out "guidelines for the use of fo rce by members of [MPD]" (MPD Order 03-01, at 1) 215 and described permissible, escalating, "level[s] of force" (id . at 2-3). It provided, in part, that 1 [u]nnecessary force occurs whenunjustified physical abuse of a person 2 has occurred or when it is apparent that the type or degree of force 3 employed was neither necessary nor appropriate , or whenany degree 4 of force is utilized as summary punishment or vengeance . THE USE 5 OF INDISCRIMINATE FORCE IS PROHIBITED. 6 (Id . at 1-2 (emphases added).) 7 Accordingly, on the night of January 5, 2006, with the assistance of Garretto and 8 Warycka, Jones filed a civilian complaint against Metakes for the use of excessive force. Jones's 9 civilian complaint--a copy of which is attached toJackler's complaint as Exhibit B--was filed on an 10 MPD Police Personnel/Department Complaint Form (" MPD Complaint Form") and repeated Jones's 11 description to Garretto of Metakes's actions during the arrest and Metakes's punching Jones in the face 12 after he had been handcuffed and placed in the police car. Jones's complaint stated that Jackler had 13 witnessed the latter assault. " [U]nder penalty of perjury ," Jones signed the MPD Complaint Form, 14 whose penultimate sentence stated: " False statements made in the foregoing complaint are 15 punishable as a Class A misdemeanor pur suant to Section 210.45 of the Penal Law " (MPD 16 Complaint Form (emphases in original)). 17

2. Jackler's Report and His Refusals To Make False Statements 18 The MPD Directive also included requirements that officers who used--or were present 19 during the use of--physical force file written reports: 20 Reporting - when a subject resists and physical force becomes 21 necessary, to overcome said resistance, each officer who used physical force 22 will complete a Subject Resistance Form for each person upon whom he/she 23 used physical force. . . . 24 An offense report will be completed by the officer who initially used 256 physical force and a supplementary report will be completed by all other 1 officers present whether they used physical force or not

. 2 (MPD Order 03-01, at 3-4 (emphasis added).) 3 On January 9, 2006, defendant Freeman directedJackler to file a supplementary report 4 detailing what had occurred in connection with Metake s's arrest of Jones. On the morning of January 5 11, Jackler filed his one-page report ("Jackler Report" or "Report"), which corroborated Jones's 6 civilian complaint that, inter alia , after hearing Jones utter the word"dick," Metakes had reopened the 7 car door and struck the handcuffed Jones in the face. Jackler's report--a copy of which is attached to 8 his complaint as Exhibit C--stated as follows: 9 ON 1/5/06 AT APPROX. 8:55PM, I, OFFICER JACKLER, RESPONDED TO 10 MOBIL ON THE RUN TO ASSIST SG T. METAKES OF THE NARCOTICS 11 UNIT. UPON ARRIVAL, SGT. METAKES HAD A SUBJECT, NOW 12 KNOWN TO ME AS ZACHARY JONES, HANDCUFFED AND UP 13 AGAINST THE NARCOTICS CAR FOR DISORDERLY CONDUCT. I 14 OBSERVED JONES TO HAVE MULTIPLE ABRASIONS ON HIS FACE. 15 I OPENED UP THE DRIVER'S SIDE REAR-DOOR OF MY PATROL UNIT 16 #6 AND SGT. METAKES PLACED JONES IN THE BACK SEAT. UPON 17 CLOSING THE DOOR, JONES UTTERED THE WORD "DICK". SGT. 18 METAKES THEN RE-OPENED THE DOOR AND STRUCK JONES IN 19 THE FACE, THEN RE-CLOSED THE DOOR. WHILE I WAS 20 TRANSPORTING JONES BACK TO [THEPOLICE STATION] HE ASKED 21 ME "IS HE ALLOWED TO DO THAT"? I STATED TO JONES TO 22 DISCUSS THE SITUATION WITH THE OTHER OFFICER ONCE WE GET 23 BACK [TO THE STATION]. 24 Metakes, who has since been promoted to lieutenant, had a "close personal and 25 professional relationship" with Byrne, Rickard, and Freeman (Complaint ¶ 22), and those defendants 26 immediately sought "to cover-up and conceal th e misconduct and illegal actions committed by Sgt. 27 Metakes in connection with his arrest and apprehension of Jones on January 5, 2006" (id . ¶ 27). On 28 the afternoon of January 11, Rickard and Freeman met with Jackler. At that meeting, they 29 "threaten[ed]" Jackler (id . ¶ 30) and, as "direct[ed by] Chief Byrne," attempted to "coerce [Jackler] 307 to withdraw his supplemental report dated January11, 2006 and refile a new report which contained 1 false, incomplete and misleading information all in an effort to conceal the illegal actions and 2 misconduct of Sgt. Metakes" (id . ¶ 31). Rickard and Freeman rep eated their attempts in several 3 subsequent meetings. The Jackler Report was truthful; Jackler refused to alter it and refused to 4 provide a false report. 5 On January 19, Byrne and Rickard appeared at the monthly meeting of the Board of 6 Police Commissioners. In retaliation for Jackler's refu sals to alter or falsif y his Report as to the 7 conduct of Metakes, Byrne and Rickard recommended at that meeting that Jackler not be retained as 8 a permanent police officer and that he be terminated as a probationary officer. In support of that 9 recommendation, they presented the Board with false, incomplete, and misleading information, 10 facilitated by Freeman, about Jackler's job performan ce. Because of defendants' misinformation and 11 advice, the Board--which had never before terminated a probationary police officer, and which at that 12 meeting voted to retain Jackler's fellow probationaryofficer as a permanent MPD officer and to hire 13 four additional probationary officers--dismissed J ackler from further MPD employment, effective 14 January 21, 2006. 15

B. The Motion To Dismiss and the District Court's Decision 16 Jackler commenced the present action pur suant to 42 U.S.C. § 1983 against Byrne, 17 Rickard, and Freeman in their individual and offi cial capacities, making the above allegations and 18 asserting principally that defendants had caused, and conspired to cause, him to be dismissed from 19 MPD in retaliation for his "refusal to cooperate with the defendants and commit a criminal act by 20 altering or falsifying his supplemental report" (Complaint ¶ 51), in violation of his rights under the 218 First Amendment (seeid . ¶¶ 43-53). He also asserted claims under the Fourth, Fifth, and Fourteenth 1 Amendments and the Racketeer Influenced and Corrupt Organizations Act. 2 Defendants answered the complaint, admitting that Jackler had filed the Report, having 3 been instructed to do so, and asserting that because his statements were made pursuant to his official 4 duties, Jackler had no cognizable claim under the Firs t Amendment. Defendants also asserted, inter 5 alia , defenses of qualified immunity. They moved pursuant to Fed. R. Civ. P. 12(c) 6 for judgment on the pleadings as to all of Jackler's claims, contending principally that Jackler's First 7 Amendment claims are barred by Garcetti v. Ceballos , 547 U.S. 410: 8 Assuming, for the purposes of this motion, that everything contained 9 in plaintiff's complaint is true, plain tiff is unable to state a claim upon which 10 relief can be granted because based upon plaintiff's own pleadings, his speech 11 was made pursuant to his official du ties as a police officer. Therefore, 12 plaintiff's speech is not protected by the First Amendment from employer 13 discipline. 14 (Memorandum of Law in Support of Defendants' Motion for Judgment on the Pleadings at 9.) 15 In opposition to defendants' motion, J ackler sought to defend only his First 16 Amendment claims for retaliation, his Fourteenth Amendment substantive due process claims for loss 17 of his position with MPD, and his claims that defe ndants conspired to deprive him of his First and 18 Fourteenth Amendment rights. As to his First Amendment retaliation claims, Jackler argued that 19 Garcettiis inapplicable. Whereas the plaintiff in Garcettihad been fired for engaging in speech that 20 was required as part of his job, Jackler's First Amendment claims were ba sed not on his Report, but 21 only on his subsequent "refus[als] to commit a blat antly wrongful--if not criminal--act." (Plaintiff's 22 Memorandum of Law in Opposition to Defendants' Motion for Judgment on the Pleadings ("Jackler 23 Memorandum Opposing Motion") at 3.) It was "his refusalto speak or report falselyabout a matter 24 of serious public concern [that] fo rm[ed] the basis of [his claims of a] First Amendment violation." 259 (Id . at 4 (emphases added).) Jackler argued that he"had a First Amendment right as a private citizen 1 to decline the defendants' invitation to falsify his official report." (Id . at 4.) 2 Defendants submitted a reply memorandum insupport of their motion, contending that 3 there was no legally significant difference between Jackler's making the statements in his January 4 Report and his refusals to make contrarystatements. They argued that Garcettiis applicable "because 5 it was plaintiff's duty as a police officer to issue the truthful report. Plaintiff's contention that he was 6 terminated because he did not issue a false report merely states the same fact in different words." 7 (Defendants' Reply Memorandum of Law in Further Support of Defendants' Motion for Judgment on 8 the Pleadings at 4.) 9 In a Memorandum Decision and Order dated February 11, 2010, reported at 708 10 F.Supp.2d 319, the district court granted defendants' moti on to dismiss the complaint. As to Jackler's 11 First Amendment retaliation claims, the court, relying principally on Garcetti and this Court's then12 recent decision in Weintraub , 593 F.3d 196, ruled--reluctantly, see708 F.Supp.2d at 324 n.5--that the 13 complaint failed to state a viable claim becausethe speech of a government employee on a matter of 14 public concern is not protected by the First Amendment unless he speaks "not as an employee in the 15 course of his duties but rather as a citizen," id . at 323, and Jackler's "speech here was in his capacity 16 as a police officer, not a citizen," id . at 324. 17 Jackler's refusal to alter his report was done in his capacity as a police officer, 18 and that refusal only occurred because he was an officer. Ironically, it is 19 because he was a public employee with a duty to tell the truth that his 20 insistence on fulfilling that duty is unprotected. 21 But because the Second Circuit made so clear in Weintraubthat speech 22 is pursuant to official duties where it is "part-and-parcel of the employee's 23 concerns about his ability to properly ex ecute his duties," 593 F.3d at 203 . . . , 24 and that in determining whether an employee speaks as a citizen the focus 25 must be on the role the speaker occupied when he spoke, seeid . . . . , and 2610 because it is so clear on the facts as alleged by Jackler that he refused to 1 withdraw or alter his truthful report inthe belief that the proper execution of 2 his duties as a police officer required no less, I do not see how I can avoid the 3 conclusion that he was speaking as an officer, not a citizen, when he did so. 4 708 F.Supp.2d at 324-25 (other internal quotation marks and footnote omitted). 5 The district court dismissed Jackler's due process claims because "Jackler had no 6 protectable property right in employment with the Middletown PD." Id . at 326. The court dismissed 7 Jackler's claims that defendants had conspired toviolate his constitutional rights because it found that 8 he had not stated any viable clai m of a constitutional violation. Seeid . at 325-26. The court deemed 9 Jackler's undefended claims abandoned. 10 The court also stated that this Court' s decision in Fierro v. City of New York , 341 F. 11 App'x 696 (2d Cir. 2009) (summary order), might s upport defendants' assertion of qualified immunity. 12 However, the court noted that there was no need to c onsider that defense in light of its determination 13 that the complaint failed to state a cause of action; it also "decline[d] to reach . . . the [qualified 14 immunity] issue on the ground that Defendants rais ed it only in their reply papers." 708 F.Supp.2d 15 at 325 n.6. 16 Judgment was entered dismissing the complaint in its entirety, and this appeal 17 followed. Although Jackler's notice of appeal indicatedthat he challenged all of the district court's 18 rulings, his brief on appeal contains no argument that any ruling other than the dismissal of his First 19 Amendment retaliation claims was incorrect, and we thus regard all of his other claims as abandoned. 20 See generallyOtero v. Bridgeport Housing Authority , 297 F.3d 142, 144 (2d Cir. 2002); Day v. 21 Morgenthau , 909 F.2d 75, 76 (2d Cir. 1990); Kletschka v. Driver , 411 F.2d 436, 446-47 (2d Cir. 22 1969); Fed. R. App. P. 28(a)(9). 2311 II. DISCUSSION 1

On this appeal, the parties agree that J ackler's First Amendment claims are not that 2 defendants retaliated against him for filing his Report but rather that they retaliated because of his 3 refusals to follow their ensuing instructions to retract the Report and to speak falsely. (See , e.g. , 4 Jackler brief on appeal at 5 ("Having refused to alterhis police report to cover-up a sergeant's 5 unlawful use of force, plaintiff engaged in a protected First Amendment activity." (emphasis added)); 6 Defendants' brief on appeal at 17 n.4 ("it is only plaintiff's refusal towithdraw the supplemental report 7 and re-submit a false report that forms the basis for his First Amendment retaliation claim"); seealso 8 Jackler Memorandum Opposing Motion at 3-4 ("Jackler's official act of filing his January 11, 2006 9 report was not what constituted a violation of his Firs t Amendment rights. Rather, his refusal to speak 10 or report falsely about a matter of serious public con cern is what forms the basis of plaintiff's [claims 11 of a] First Amendment violation.").) Jackler contends that as he complains of retaliation for his 12 refusals to retract his Report and make statements that were false, the district court erred in ruling that 13 Garcettiand Weintraub required the conclusion that such a claim is beyond the scope of the First 14 Amendment. Defendants urge affirmance on the ground that "[f]iling a truthful report and not filing 15 a false report are the same act" (Defendants' brief on appeal at 21) and that both were "pursuant to 16 [Jackler's] official duties as an o fficer and . . . , therefore, not pr otected by the First Amendment" (id

. 17 at 25-26). Defendants also argue that they are en titled to qualified immunity. For the reasons that 18 follow, we conclude that the claim that defendants caused Jackler to be fired in retaliation for his 1912 refusals to obey their instructions to retract his truthful filed Report and file a false report is not 1 beyond the scope of the First Amendment. 2

A. Government Employees and Their Limited First Amendment Rights 3 It is by now well established both that a citizen, upon entering government service, "by 4 necessity must accept certain limitations on his or her freedom," Garcetti , 547 U.S. at 418; see , e.g. , 5 Waters v. Churchill , 511 U.S. 661, 671-73 (1994) (plurality opinion); Connick v. Myers , 461 U.S. 6 138, 143 (1983), and that "upon accepting public employment," such employees "do not check all of 7 their First Amendment rights at the door," Lewis v. Cowen , 165 F.3d 154, 158 (2d Cir.) ("Lewis "), 8 cert. denied , 528 U.S. 823 (1999); see , e.g. , Garcetti , 547 U.S. at 417; Pickering v. Board of 9 Education , 391 U.S. 563, 568 (1968). "Government employers, like private employers, need a 10 significant degree of control over their employees' words and actions" in order that employees not 11 "contravene governmental policies or impair th e proper performance of governmental functions," 12 Garcetti , 547 U.S. at 418, 419; when acting "as an empl oyer charged with provi ding such essential 13 services as public safety and education," rather than a sovereign governing its citizens, a governmental 14 entity has "greater leeway" under the Constitution "to control employees' speech that threatens to 15 undermine its ability to perform its legitimate functions," Lewis , 165 F.3d at 161. 16 At the same time, the Court has rec ognized that a citizen who works for 17 the government is nonetheless a citizen . The First Amendment limits the 18 ability of a public employer to leverage the employment relationship to 19 restrict, incidentally or intentionall y, the liberties employees enjoy in their 20 capacities as private citizens. See Perryv. Sindermann , 408 U.S. 593, 597 21 (1972). So long as employees are speaking as citizens about matters of public 22 concern, they must face onlythose speech restrictions that are necessary for 23 their employers to operate efficiently and effectively . See, e.g. , Connick , 24 supra , at 147 ("Our responsibility is to ensure that citizens are not deprived of 25 fundamental rights by virtue of working for the government"). 2613 Garcetti , 547 U.S. at 419 (emphases added). 1 In Pickering , which the GarcettiCourt called "a useful st arting point" for describing 2 the applicability of First Amendment principles to speech by government employees, 547 U.S. at 417, 3 the Court ruled that, given that "the core value" protected by "the Free Speech Clause of the First 4 Amendment" is "[t]he public interest in having free and unhindered debate on matters of public 5 importance," Pickering , 391 U.S. at 573, "the First Amendmen t protects a public employee's right, 6 in certain circumstances, to speak as a citizen addressing matters of public concern," Garcetti , 547 7 U.S. at 417 (citing Pickering , 391 U.S. at 568). See alsoBorough of Duryea v. Guarnieri , 131 S. Ct. 8 2488, 2491-92, 2497 (2011) (public concern test also applies to claims under the First Amendment's 9 Petition Clause). If the speech is within the sc ope of First Amendment protection, the employer may 10 not, because of that speech, penalize the employ ee without an adequate justification. See , e.g. , 11 Garcetti , 547 U.S. at 417; Pickering , 391 U.S. at 568. Thus, 12 Pickeringand the cases decided in its wake identify two inquiries to 13 guide interpretation of the constitutional protections accorded to public 14 employee speech. The first requires de termining whether the employee spoke 15 as a citizen on a matter of public concern . See [391 U.S.] at 568. If the answer 16 is no, the employee has no First Amendment cause of action based on his or 17 her employer's reaction to the speech . See Connick , [461 U.S.] at 147. If the 18 answer is yes, then the possibility of a First Amendment claim arises. The 19 question becomes whether the relevant government entity had an adequate 20 justification for treating the employee differently from any other member of 21 the general public. See Pickering , 391 U.S., at 568. 22 Garcetti , 547 U.S. at 418 (emphases added). 23 In Garcetti , the Court parsed the first of the above "two inquiries" into separate 24 questions as to (1) whether the subject of the employee's speech was a matter of public concern and 25 (2) whether the employee spoke "as a citizen" rather than solely as an employee. See , e.g. , id

. 26 at 420-22, 424. Whether speech is on a matter of pub lic concern, which is a question of law, see , e.g. , 2714 Connick , 461 U.S. at 148 n.7; id . at 150 n.10, is to be answered by the court after examining the 1 "content, form, and context of a given statement, as revealed by the whole record," id . at 147-48. The 2 fact that a statement was made to the employer in private is not determinative of whether its subject 3 was a matter of public concern. See , e.g. , id . at 148 & n.8 (noting that the Connick plaintiff's private 4 complaints about the assignments given to her di d not implicate matters of public concern, whereas 5 the private complaints of the plaintiff in Gi vhan v. Western Line Cons olidated School District , 439 6 U.S. 410 (1979), concerning the school district's alle gedly racially discriminatory policies clearly 7 involved a matter of public concern). Nor does the fact that expressive conduct is public mean that 8 its subject is a matter of public concern. See , e.g. , City of San Diego v. Roe , 543 U.S. 77, 78, 84-85 9 (2004) ("Roe ") (publication and sale of videotapes show ing the plaintiff engaging in sexually explicit 10 acts was not speech on a matter of public concern). 11 To constitute speech on a matter of public concern, an employee's expression must "be 12 fairly considered as relating to any matter of po litical, social, or other concern to the community." 13 Connick , 461 U.S. at 146. Speech that, although touching on a topic of general importance, primarily 14 concerns an issue that is "personal in nature and generally related to [the speaker's] own situation," 15 such as his or her assignments, promotion, or salary, does not address matters of public concern. 16 Ezekwo v. NYC Health & Hospitals Corp. , 940 F.2d 775, 781 (2d Cir.), cert. denied , 502 U.S. 1013 17 (1991); see , e.g. , Connick , 461 U.S. at 148. "'Government o ffices could not function if every 18 employment decision became a constitutional matter.'" Garcetti , 547 U.S. at 419 (quoting Connick , 19 461 U.S. at 143). Rather, a topic is a matter of public concern for First Amendment purposes if it is 20 "of general interest," or "of legitimate news intere st," or "of value and concern to the public at the 21 time" of the speech. Roe , 543 U.S. at 83-84. 2215 "Exposure of official misconduct, especially within the police department, is generally 1 of great consequence to the public ." Branton v. City of Dallas , 272 F.3d 730, 740 (5th Cir. 2001); see 2 Garcetti , 547 U.S. at 425 ("governmental . . . misconduct is a matter of considerable significance"). 3 The Fourth Amendment to the United States Constitution, which applies to the States through the 4 Fourteenth Amendment, prohibits the use of excessiveforce by policemen in the course of an arrest, 5

see , e.g. , Graham v. Connor , 490 U.S. 386, 394 (1989), and it is a fe deral offense to deprive a person 6 of his or her civil rights under color of law, see18 U.S.C. § 242. Deliberate indifference to claims 7 of such civil rights violations--tantamount to a custom or policy sufficient to support municipal 8 liability under § 1983--may be inferred from a municipality's lack of appropriate response to repeated 9 complaints of such violations. See , e.g. , Vann v. City of New York , 72 F.3d 1040, 1049 (2d Cir. 10 1995) (reversing grant of summary judgment in favor of municipality, and remanding for trial, on the 11 excessive-force claim of a plaintiff attacked by an off-duty police officer against whom several 12 excessive-force complaints had been made); Fiacco v. City of Rensselaer , 783 F.2d 319, 328 (2d Cir. 13 1986) ("Fiacco ") ("[w]hether or not the claims had validity, the very asserti on of a number of such 14 claims put the City on notice that there was a possibility that its police offi cers had used excessive 15 force"), cert. denied , 480 U.S. 922 (1987). Thus, for several reasons, including public safety and 16 welfare--as well as preservation of the public fisc, see , e.g. , Colleen Long & Jennifer Peltz, AP 17 Investigation: Nearly $1B in NYC Police Payouts , Associated Press, October 14, 2010 (New York 18 City Police Department in the past decade paid "[ m]ore than $23 million . . . to compensate for police 19 bullets or brutality . . . . Some officers are sued multip le times . . . ." "Taxpayers foot the bill . . . .")-- 20 police malfeasance consisting of the use of excessive force is plainly a matter of public concern. 21 "When an employee speaks as a citizen addressing a matter of public concern, the First 2216 Amendment requires a delicate balancing of the competing interests surrounding the speech and its 1 consequences." Garcetti , 547 U.S. at 423; see , e.g. , Waters , 511 U.S. at 668 (plurality opinion); 2 Rankin v. McPherson , 483 U.S. 378, 384 (1987); Pickering , 391 U.S. at 568. 3 The Pickeringbalance requires full consideration of the government's 4 interest in the effective and efficient fulfillment of its responsibilities to the 5 public . One hundred years ago, the Court noted the government's legitimate 6 purpose in "promot[ing] efficiency and integrityin the discharge of official 7 duties, and to maintain proper discipline in the public service." 8 Connick , 461 U.S. at 150-51 (quoting Ex parte Curtis , 106 U.S. 371, 373 (1882) (emphases ours)). 9 The weighing of the competing interests is a matter of law for the court. See , e.g. , Waters , 511 U.S. 10 at 668 ("it is the court's task to apply the [balancing] test to the facts") (plurality opinion); Lewis , 165 11 F.3d at 164 ("the magistrate judge erred when he submitted the Pickeringbalancing test to the jury 12 to resolve"). In the Pickeringbalancing analysis, "the state's burden in justifying a particular 13 discharge varies depending upon the nature of the employee's expression." Connick , 461 U.S. at 150. 14 "The more the employee's speech touches on matters of significant public concern, the greater the 15 level of disruption to the government that must be shown." Lewis , 165 F.3d at 162. And "if the 16 allegations of internal misconduct are indeed true, [the employee's] statements could not have 17 adversely affected the proper functioning of the department since the statements were made for the 18 very reason that the department was not functi oning properly." Brawner v. City of Richardson , 855 19 F.2d 187, 192 (5th Cir. 1988) (emphasis added). 20 If the employee did not speak as a citize n, the speech is not protected by the First 21 Amendment, and no Pickering balancing analysis is required. See , e.g. , Connick , 461 U.S. at 146; 22 Garcetti , 547 U.S. at 423 ("When . . . the employee is si mply performing his or her job duties, there 23 is no warrant for a similar degree of scrutiny."). Whether the employee spoke solely as an employee 2417 and not as a citizen is also largely a que stion of law for the court. The GarcettiCourt stated that the 1 nature of the employ ee's duties is to be determined as a "practical" matter; it observed that "[f]ormal 2 job descriptions often bear littl e resemblance to the duties an employee actually is expected to 3 perform"; and it "reject[ed] . . . the suggestion that employers can restrict employees' rights by 4 creating excessively broad job descriptions." Id . at 424-25. As a rule of thumb, activities required 5 of the employee as part of his employment duties are not performed "as a citi zen" if they are not "the 6 kind of activity engaged in by citizens who do not work for the government," id . at 423. 7 In Weintraub , for example, this Court concluded th at the plaintiff teacher's complaints 8 of classroom disorder, which related to his core duties as a teacher, were not protected by the First 9 Amendment in part because "his speech ultimately took the form of an employee grievance " filed with 10 his union, 593 F.3d at 203 (emphasis added), for which there was "no relevant analogue to citizen 11 speech," id . at 198; seeid . at 204. We indicated th at the complaints by Weintraub would have had 12 a relevant civilian analogue if, instead of lodging th em with his union, he had "voic[ed] his grievance 13 through channels available to citizens generally," id . The matter of whether the government 14 employee's duties do or do not have a civilian analogue is a question of law. See , e.g. , id . at 200. 15 The GarcettiCourt dealt with a First Amendment claim by a deputy district attorney 16 who alleged that he was punished for writing a di sposition memorandum that criticized an affidavit 17 on which a search warrant had been based and th at "advise[d] his supervisor about how best to 18 proceed with [the] pending case." 547 U.S. at 421. The plaintiff "wrote his disposition memo because 19 that is part of what he, as a calendar deputy, was employed to do." Id . The Court noted that the 20 parties did not dispute that the deputy had given his advice "pursuant to his employment duties," id

. 21 at 424, and it indicated that the giving of such advice had no civilian analogue, seeid . at 423-24. The 2218 Court concluded that the deputy's statements were not protected by the First Amendment. 1

B. The Rights of Civilians To Say Only What They Believe Is True 2 Most of the above cases dealt with government employees who complained that they 3 were penalized by their employers on account of statements the employees affirmatively made. 4 Jackler, in contrast, contends that he was penalizedfor his refusals to follow defendants' instructions 5 that he retract his Report and make statements that would have been untrue, and that his refusals are 6 protected by the First Amendment. 7 There is certainly some difference be tween compelled speech and compelled 8 silence, but in the context of protected speech, the difference is without 9 constitutional significance, for the First Amendment guarantees "freedom of 10 speech," a term necessarily comprising the decision of both what to say and 11 what notto say. 12 Riley v. National Federation of the Blind of North Carolina, Inc. , 487 U.S. 781, 796-97 (1988) 13 (emphasis in original); see , e.g. , Wooley v. Maynard , 430 U.S. 705, 714 (1977) ("[T]he right of 14 freedom of thought protected by th e First Amendment against state action includes both the right to 15 speak freely and the right to refrain from speaking at all."). 16 In Wooley , for example, the Court upheld a First Amendment challenge by New 17 Hampshire citizens to that State's requirement that their cars bear license plates displaying the slogan 18 "Live Free or Die," contrary to their political, religi ous, moral, or ethical views. The Court stated, 19 we are faced with a state measure which forces an individual, as part of his 20 daily life--indeed constantly while his automobile is in public view--to be an 21 instrument for fostering public adheren ce to an ideological point of view he 22 finds unacceptable. In doing so, the State "invades the sphere of intellect and 23 spirit which it is the purpose of the First Amendment to our Constitution to 24 reserve from all official control." 25 430 U.S. at 715 (quoting Board of Education v. Barnette , 319 U.S. 624, 642 (1943)); see , e.g. , 2619 Wooley , 430 U.S. at 717 ("where the State's interestis to disseminate an ideology, no matter how 1 acceptable to some, such interest cannot outweigh an individual's First Amendment right to avoid 2 becoming the courier for such message"). 3 In the context of an official investigation into possible wrongdoing, a citizen has a 4 right--and indeed, in some circumstances, a duty--to give evidence to the investigators. See , e.g. , 5 Kaluczky v. City of White Plains , 57 F.3d 202, 210 (2d Cir. 1995) ("Voluntarily appearing as a 6 witness in a public proceeding or a lawsuit is a kind of speech that is protected by the First 7 Amendment."); 18 U.S.C. § 4 (making it a felony, "[with] knowledge of th e actual commission of a 8 [federal] felony" to "conceal[] . . . the same"). A law enforcement officer does not, by reason of his 9 public employment, lose his civic right to give evidence. See , e.g. , Dobosz v. Walsh , 892 F.2d 1135, 10 1141 (2d Cir. 1989) (police officer "clearly was exercising his right to free speech when he cooperated 11 with the F.B.I. and when he testified against his fellow officer in court"). 12 The simple right to give evidence is not at issue here because Jackler's contention is 13 only that he suffered retaliation for refusing to retr act his Report and refusing to substitute statements 14 that were false. However, when a person does give evidence, he has an obligation to speak truthfully. 15 For example, it is a federal offense to make "any materially false, fictitious, or fraudulent statement 16 or representation" in any matter within the juri sdiction of the federal government, 18 U.S.C. § 1001. 17 It is also an offense under New York law to make a false report with respect to a crime: 18 A person is guilty of falsely reporting anincident in the third degree when, 19 knowing the information reported . . . to be false or baseless, he . . . 20 [g]ratuitously reports to a law enforcement officer or agency . . . false 21 information relating to an actual offense . . . . 22 N.Y. Penal Law § 240.50 (McKinney 2008). Similarly, 23 [a] person is guilty of offering a false in strument for filing in the second degree 2420 when, knowing that a written instrument contains a false statement or false 1 information, he offers or presents it to a public office or public servant with the 2 knowledge or belief that it will be filed with, registered or recorded in or 3 otherwise become a part of the records of such public office or public servant. 4 N.Y. Penal Law § 175.30 (McKinney 2010). Indeed, as quoted in Part I.A.1. above, the MPD 5 Complaint Form signed by Jones warned that any false statement made on such a form would expose 6 him to criminal liability under N.Y. Penal Law § 210.45, which provides that "[a] person is guilty of 7 making a punishable false written statement when he knowingly makes a false statement, which he 8 does not believe to be true, in a written instrumentbearing a legally authorized form notice to the 9 effect that false statements made therein are puni shable." The term "person" in such provisions 10 plainly includes police officers. Cf. People v. Saporita , 132 A.D.2d 713, 715, 518 N.Y.S.2d 625, 11 627-28 (2d Dep't 1987) (ruling that, although a new trial was required because of prosecutorial 12 misconduct, the evidence was sufficient to convict the defendant police officers of tampering with 13 police records in order to conceal the misfeasance of one of the officers, seeN.Y. Penal Law § 175.20 14 (McKinney 2010) ("A personis guilty of tampering with public records in the second degree when, 15 knowing that he does not have the authority of anyoneentitled to grant it, he knowingly removes, . . . 16 makes a false entry in or falsely alters any record or other written instrument filed with , deposited in, 17 or otherwise constituting a record of a public office . . . ." (emphases added))). See also18 U.S.C. 18 § 1512(c) (making it a crime to "alter [] . . . or conceal [] a record . . . with the intent to impair [its] 19 integrity or availability for use in an official [federal] proceeding" (emphases added)); id . § 1519 20 (same for "knowingly alter[ing] , . . . falsif[ying] , or mak[ing] a false entry in any record. . . with the 21 intent to impede, obstruct, or influence the investigationor proper administration of any matter within 22 the jurisdiction of any [federal] department or agen cy" (emphases added)). Thus, retracting a truthful 23 statement to law enforcement officials and substitu ting one that is false would expose the speaker-- 2421 whether he be a police officer or a civilian--to criminal liability. 1 Nor does anyone have authority to require a w itness to retract his true statements and 2 make statements that are false, for the persons who induce someone to commit a crime such as those 3 described above are themselves guilty of that crime. See , e.g. , 18 U.S.C. § 2(a) ("Whoever . . . 4 counsels, commands, induces or procures [the] co mmission [of an offense against the United States] 5 is punishable as a principal."); N.Y. Penal Law § 20.00 (McKinney 2009) ("When one person engages 6 in conduct which constitutes an offense, another person is criminally liable for such conduct when, 7 acting with the [requisite] mentalculpability . . . , he solicits, requests, commands, [or] importunes 8 . . . such person to engage in such conduct."). 9 In Lewis , discussed in Part II.A. above, the plaintiff, head of the lottery unit of a state's 10 revenue division, contended that he was fired for re fusing to testify dishonestly before the state's 11 Gaming Board with respect to proposed changes to a lottery game--a contention that initially gave us 12
pause, see165 F.3d at 165, but that foundered for lack of proof at trial: 13 We agree that Lewis had a strong First Amendment interest in testifying 14 truthfully before the Board but we do not believe that interest to have been 15 implicated here . Lewis was directed to present the Division's views, not his 16 own. Although Lewis understood [the] order [to present the proposed changes 17 in a positive light] to mean that he should "lie" to the Board, there is no 18 evidence that [the division's executive di rector] or anyone else ordered Lewis 19 to misrepresent either the facts or his personal views to the Board

. 20 Id . at 166 (emphases added). 21

C. Jackler's Refusals To Misrepresent the Events He Witnessed 22 In the present case, Jackler had a strong Fi rst Amendment interest in refusing to make 23 a report that was dishonest. We think it clear that his refusals to change his statement as to what he 2422 witnessed when Metakes struck Jones were directed at a matter of public concern, rather than an effort 1 to further some private interest of Jackler personally. The use of excessive force by a police officer 2 is a matter of serious public concern for the reasons discussed in Part II.A. above. Metakes's use of 3 force against Jones did not implicate Jackler's ability to do his own job properly, and the record 4 contains no indication that Jackler had any personal interest in describing Metakes's conduct. Rather, 5 the pleadings indicated (1) that on the drive to th e police station, when Jones attempted to complain 6 to Jackler about Metakes's punch, Jackler simply told Jones to raise the matter with Metakes (see 7 Complaint Exhibit C); (2) that the first member of MPD to raise any question with respect to Jones's 8 injuries was the desk officer, Garretto, not Jackler (seeComplaint Exhibit D); (3) that Jones, in his 9 civilian complaint filed on the night of January 5, stated that Jackler had been a witness to Metakes's 10 punch (seeComplaint Exhibit B); and (4) that it was not until January 11, after being instructed on 11 January 9 by Freeman to file a report, that Jackler made his Report stating that Metakes had reopened 12 the patrol car door and struck the handcuffed Jones in the face (seeComplaint Exhibits C and D). 13 After having filed his truthful Report, Jackler simp ly refused to comply with the demands of his 14 superiors that he proceed to deviate from the truth as to Metakes's use of force. 15 We also think it clear that Jackler's refu sal to accede to defendants' demands that he 16 falsely exculpate Metakes has a civilian analogue. As indicated by the authorities discussed above, 17 a citizen has a First Amendment right to decide wh at to say and what not to say, and, accordingly, the 18 right to reject governmental efforts to require him to make statements he believes are false. Thus, a 19 citizen who has truthfully reported a crime has the indi sputable right to reject pressure from the police 20 to have him rescind his accusation and falsely excu lpate the accused. And, as indicated by laws such 21 as the statutory provisions described in Part II. B. above, a civilian who acceded to such pressure 2223 would subject himself to criminal liability, as woul d a police officer. Of course a police officer has 1 a duty not to substitute a falsehood for the truth, i.e. , a duty to tell "nothing but the truth"; but he 2 plainly has that duty as a citizen as well. 3 As we indicated in Weintraub , an indicium that speech by a public employee has a 4 civilian analogue is that the employee's speech was to"'an independent state agency'" responsible for 5 entertaining complaints by "'any citizen in a democratic society regardless of his status as a public 6 employee,'" 593 F.3d at 204 (quoting Freitag v. Ayers , 468 F.3d 528, 545 (9th Cir. 2006), cert. denied , 7 549 U.S. 1323 (2007)). A police department plainly is such an agency. Here, Jones, a civilian, filed 8 a presumably accurate complaint with MPD stating th at Metakes, after shutting him in the patrol car, 9 reopened the door upon hearing the insult and struck hi m in the face. MPD could not, consistent with 10 the First Amendment, have forced Jones to withdr aw his complaint and say falsely that Metakes had 11 done no wrong. Jackler, having witnessed Metakes's attack and corroborated Jones's allegation, was 12 entitled to the same constitutional protection as Jones ag ainst being forced to retract his true statement 13 and instead make a statement that would exculpate Metakes falsely. 14 Although defendants argue that Jackler's refusals were part of his job and that Garcetti 15 requires affirmance because otherwise any employee who simply files a truthful report could claim 16 that his First Amendment rights were implicated because he did not file a false one, we reject that 17 contention because it ignores the context of Jackler' s refusals. Jackler's allegation--which must be 18 accepted as true in the context of judgment on the pleadings--was that Rickard and Freeman, as 19 directed by Chief Byrne, repeatedly attempted to force him to withdraw the truthful report he had filed 20 and to submit one that was false. In the context of the demands that Jackler retract his truthful 21 statements and make statements that were false, we conclude that his refusals to accede to those 2224 demands constituted speech activity that was significantly different from the mere filing of his initial 1 Report. 2 In sum, it is clear that the First Amendment protects the rights of a citizen to refuse to 3 retract a report to the police that he believes is true , to refuse to make a statement that he believes is 4 false, and to refuse to engage in unlawful conduct by filing a false report with the police. We 5 conclude that Jackler's refusal to comply with orders to retract his truthful Report and file one that was 6 false has a clear civilian analogue and that Jackler was not simply doing his job in refusing to obey 7 those orders from the department's top administrative officers and the chief of police. 8

D. Balancing MPD's Interests Against Those of Jackler 9 Having concluded that Jackler's refusals to retract his truthful Report and make 10 statements that would have been false constitute d speech by Jackler as a citizen on a matter of public 11 concern, and hence were within the scope of the Firs t Amendment, we turn to the question of whether 12 defendants can prove that they were nonetheless entitle d to retaliate against Jackler in the interest of 13 promoting efficient operation within MPD. Given that employees speaking as citizens about matters 14 of public concern "must face onlythose speech restrictions that are necessary for their employers to 15 operate efficiently and effectively," Garcetti , 547 U.S. at 419 (emphasis added), this question does 16 not require extended consideration. 17 The government as an employer has broad discretion to manage its operations. But 18 that discretion does not include authority to coerce or intimidate its employees to engage in criminal 19 conduct by filing reports that are false in order to conceal wrongdoing by another employee or to 20 conceal eyewitness corroboration of civilian complaints of such wrongdoing. Thus, given that if "a 2125 number of such claims" are asserted, that very fact serves to "put the [police department] on notice" 1 that an officer may be us ing excessive force, Fiacco , 783 F.2d at 328, a department that disapproves 2 of the use of such force and is not indifferent to itsuse will retain records of such claims. It would 3 be inappropriate for the department to seek to con ceal such claims, or to require a citizen to withdraw 4 a truthful claim, or to seek to conceal a witnessing officer's corroboration of the events alleged in such 5 a claim. See generallyFrank v. Relin , 1 F.3d 1317, 1331 (2d Cir.) ("If [the defendant District 6 Attorney] fired [the plaintiff] because she 'blew the whistle' on Brady[v. Maryland , 373 U.S. 83 7 (1963)] violations [by Assistant District Attorneys] , that consideration could not outweigh her First 8 Amendment right to speak up about those violati ons, no matter how piercing the whistle to the ears 9 of the ADAs."), cert. denied , 510 U.S. 1012 (1993). 10 If defendants are proven to have caused Jackler's termination in retaliation for his 11 refusal to retract his truthful Report and make fals e statements in order to conceal Metakes's use of 12 excessive force, their actions cannot be seen as promoting "integrity" in the discharge of MPD's 13 responsibilities, Connick , 461 U.S. at 151 (internal quotation mark s omitted), or furthering the "proper 14 performance of governmental functions," Garcetti , 547 U.S. at 419 (emphasis added). 15

E. Qualified Immunity 16 Qualified immunity, an affirmative defense as to which the defendants have the burden 17 of proof, see , e.g. , Gomez v. Toledo , 446 U.S. 635, 640 (1980), shields officials "from liability for 18 civil damages insofar as their conduct does not violate clearly established statutory or constitutional 19 rights of which a reasonable person w ould have known," Harlow v. Fitzgerald , 457 U.S. 800, 818 20 (1982). A right is "clearly established" when "[t] he contours of the right [are] sufficiently clear that 2126 a reasonable official would understand that what he is doing violates that right." Anderson v. 1 Creighton , 483 U.S. 635, 640 (1 987) ("Creighton "). "'This is not to say that an official action is 2 protected by qualified immunity unless the very action in question has previously been held unlawful, 3 but it is to say that in the light of pre-existing law the unlawfulness must be apparent.'" Wilson v. 4 Layne , 526 U.S. 603, 615 (1999) (quoting Creighton , 483 U.S. at 640). 5 Thus, if the law was sufficiently "clearly established, the immunity defense ordinarily 6 should fail, since a reasonably competent public o fficial should know the law governing his conduct." 7 Harlow , 457 U.S. at 818-19. Though a mere mistake in the performance of an official duty may not 8 deprive the officer of the defense, the qualified immunity doctrine does not shield performance that 9 either was in violation of clearly establis hed law or was plainly incompetent. See , e.g. , Hunter v. 10 Bryant , 502 U.S. 224, 229 (1991) ("The qualified immunity standard 'gives ample room for mistaken 11 judgments' by protecting 'all but the plainly incompetent or those who knowingly violate the law.'" 12 (quoting Malley v. Briggs , 475 U.S. 335, 343, 341 (1986))). 13 Defendants in the present case urge, as an alternative basis for affirmance, that they 14 "be dismissed from this action" on the basis of qualif ied immunity (Defendants' brief on appeal at 32). 15 The district court did not decide the issue of qualified immunity, give n defendants' failure to raise that 16 issue in their motion until their reply brief, see708 F.Supp.2d at 325 n.6, and given the court's 17 dismissal of Jackler's First Amendment retaliation claims on the basis of the pleadings, seeid ., 18 although the district court stated that, based on this Court's decisi on in Fierro v. City of New York , 19 341 F. App'x 696 (2d Cir. 2009) (summary order) ("Fierro "), the qualified immunity defense would 20 appear to be viable, see 708 F.Supp.2d at 325 n.6. While we leave it to the district court in the first 21 instance to decide the merits of that defense following the jury's resolution of any factual issues 2227 needed to inform that decision, the invocation of the qualified immunity defense and the references 1 by defendants and the district court to Fierrowarrant several observations. 2 First, all of the freedom-of-speech cases cited in Parts II.A. and B. above--except 3 Garcettiand Weintraub --had been decided before defendants retaliated against Jackler. Thus, in 4 January 2006, when Jackler was terminated, it had beenclearly established that the First Amendment 5 protected a citizen's decision both as to what to say and what not to say, and that it protected a 6 government employee, including a police officer, speaking as a citizen on a matter of public concern, 7 against retaliation for that speech except where the government's interest in the agency's proper 8 functioning outweighed the employee's First Amendment right. Several years before the events in 9 the present case, we cited Pickering , Waters , Rankin , and Connick and stated that "[t]he employee's 10 right to be free from such retaliation has been cl early established since at least 1968." Munafo v. 11 Metropolitan Transportation Authority , 285 F.3d 201, 211 (2d Cir. 2002). Any uncertainty introduced 12 by Garcettiand Weintraub , which were not decided until after defendants' retaliation against Jackler 13 (and which, for the reasons discu ssed above, do not deprive Jackler of First Amendment protection 14 for his refusals to lie), would not entitle defendant s to qualified immunity because the availability of 15 that defense depends on whether the unlawfulne ss of their conduct was apparent in light of 16 "'pre -existing law,'" Wilson , 526 U.S. at 615 (quoting Creighton , 483 U.S. at 640 (emphasis ours)); 17 Hope v. Pelzer , 536 U.S. 730, 739 (2002) (same); United States v. Lanier , 520 U.S. 259, 271-72 18 (1997) (same). 19 Second, although the district court stated that this Court's decision in Fierro"would 20 seem to require the conclusion that the defendants are qualifiedly immune here," 708 F.Supp.2d at 325 21 n.6, Fierro was decided by summary order. Under this Court's Rules, and as stated in the heading of 2228 our summary orders deciding appeals, "RULINGS BY SUMMARY ORDER DO NOT HAVE 1 PRECEDENTIAL EFFECT." See2d Cir. Local R. 32.1.1(a). A lthough "[d]enying summary orders 2 precedential effect does not mean that the court considers itself free to rule differently in similar 3 cases," Order dated June 26, 2007 (adopting 2d Cir. Local R. 32.1., amended in other respects and 4 renumbered32.1.1, effective Jan. 1, 2010), the rationale underlying the Rule is that such orders, being 5 summary, frequently do not set out the factual background of the case in enough detail to disclose 6 whether its facts are sufficiently similar to those of a subsequent unrelated case to make our summary 7 ruling applicable to the new case. In Fierroitself, for example, we stated our usual assumption that 8 the parties were familiar with the facts; we describe d the plaintiff simply as "refus[ing] to follow [the 9 principal's] order to submit false and damaging information about two teacher s at the school"; and we 10 provided no details such as what the plaintiff had b een instructed to say or to whom the allegedly 11 "false and damaging information" was to have been "submit[ted]." The facts of that case may or may 12 not be similar to those at issue here. But Fierrodoes not require the court to uphold the qualified 13 immunity defenses asserted here for, by Rule, Fierro has no precedential effect. 14 Finally, because a claim asserted against a government official in his official capacity 15 is essentially a claim against the governmental entityitself, the defense of qualified immunity, which 16 may be available to indi vidual defendants as they are sued in their individual capacities, is not 17 applicable to claims against them in their official capacities. See generallyHafer v. Melo , 502 U.S. 18 21, 25 (1991); Kentucky v. Graham , 473 U.S. 159, 165-67 (1985); Owen v. City of Independence , 19 445 U.S. 622, 638 (1980); Monell v. Department of Social Services , 436 U.S. 658, 690 n.55 (1978). 20 And "there is no tradition of immunity for municipal corporations." Owen , 445 U.S. at 638. 21 Jackler's complaint asserted claims against defendants in both their individual and 2229 official capacities. Thus, even if the court were eventually to determine that defendants are entitled 1 to qualified immunity on the claims against them in their individual capacities, that determination 2 would not entitle them to dismissal of the official-capacity claims. See generallyKentucky v. 3 Graham , 473 U.S. at 166 n.11 ("In an official-capacity ac tion in federal court, death or replacement 4 of the named official will result in automatic substitution of the official's successor in office. See Fed. 5 Rule Civ. Proc. 25(d)(1); Fed. Rule App. Pr oc. 43(c)(1); [Supreme] Court[] Rule 40.3."). 6

CONCLUSION 7

We have considered all of defendants' arguments in support of affirmance and have 8 found them to be without merit. The judgment of th e district court is vacated to the extent that it 9 dismissed Jackler's claims against defendants for retaliation in violation of the First Amendment, and 10 the matter is remanded for trial or for such other proceedings as are not inconsistent with this opinion. 11 Costs to plaintiff. 12Jackler v. Byrne, No. 10-0859-cv 1 Sack, Circuit Judge , concurring 2

------------------------------------------------------------- 3 I fully concur in Judge Kearse's opinion for the panel. 4 I write separately only to offer an observation as to one aspect 5 of the panel opinion. 6 This case is about plaintiff Jason Jackler's refusal to 7 "make false statements in connection with an investigation into a 8 civilian complaint alleging use of excessive force by a 9 [Middletown Police] Department officer," ante at [2], and the 10 Town Board of Police Commissioners' subsequent decision not to 11 hire Jackler -- then a probationary police officer -- on a 12 permanent basis. The Board allegedly acted at the behest of the 13 defendant officials, who wished to punish Jackler for his refusal 14 to falsify his previously filed report about alleged police 15 misbehavior. In light of the fact that this litigation involves 16 a refusal to speak falsely as directed by a public official, 17 unlike the more common case, see id. at **[18],** where a public 18 employee is sanctioned because he or she spoke in a manner of 19 which government officials disapproved, see id. , the panel 20 opinion makes clear that the difference between the two is, for 21 present purposes, immaterial. See id. at **[19-20]** . I agree. 22 In support of that proposition, however, the panel 23 quotes this statement by the United States Supreme Court in Riley 24 v. National Federation of the Blind of North Carolina, Inc. , 487 25 U.S. 781 (1988): 26-2- There is certainly some difference between 1 compelled speech and compelled silence, but 2 in the context of protected speech, the 3 difference is without constitutional 4 significance , for the First Amendment 5 guarantees "freedom of speech," a term 6 necessarily comprising the decision of both 7 what to say and what not to say. 8 Id. at 796-97 (Brennan, J. ) (first emphasis supplied); see ante 9
at **[18]** . The panel also quotes Wooley v. Maynard , 430 U.S. 705 10 (1977): "[T]he right of freedom of thought protected by the 11 First Amendment against state action includes both the right to 12 speak freely and the right to refrain from speaking at all." Id. 13
at 714; see ante at **[18]**

. 14 The Supreme Court made these statements, and the panel 15 invokes them, in response to the argument that compelled speech 16 may receive less protection under the First Amendment than does 17 compelled silence. The panel's conclusion otherwise does not, 18 however, imply the converse conclusion that compelled speech can 19 never receive more solicitude than compelled silence. 20 Justice Jackson, speaking for the Court, remarked some 21 time ago that "[i]t would seem that involuntary affirmation could 22 be commanded only on even more immediate and urgent grounds than 23 silence." W. Va. State Bd. of Educ. v. Barnette , 319 U.S. 624, 24 633 (1943) (holding that state-compelled flag salute and pledge 25 violate the First Amendment); see also Hurley v. Irish-Am. Gay, 26 Lesbian & Bisexual Grp. of Boston , 515 U.S. 557, 573-74 (1995) 27 ("Outside the context [of commercial speech, the State] may not 281 Cf., e.g. , Cacchillo v. Insmed, Inc. , 638 F.3d 401, 405-06 (2d Cir. 2011) ("The burden [for obtaining an injunction] is even higher on a party like [the appellant] that seeks 'a mandatory preliminary injunction that alters the status quo by commanding some positive act, as opposed to a prohibitory injunction seeking only to maintain the status quo.'" (citation omitted)); Doninger v. Niehoff , 527 F.3d 41, 47 (2d Cir. 2008) (characterizing the standard for mandatory injunctions as "more rigorous" than that for prohibitory injunctions); 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 2942 (2d ed. 1995) ("It has been said that courts are more reluctant to grant a mandatory, or affirmative, injunction than a prohibitory, or negative, one."). -3- compel affirmance of a belief with which the speaker 1 disagrees. . . . This general rule . . . applies not only to 2 expressions of value, opinion, or endorsement, but equally to 3 statements of fact the speaker would rather avoid . . . ."). 4 I write only to note the possibility that despite the 5 notion of equivalence reflected in the panel opinion and the 6 Supreme Court opinions from which it quotes, it is possible that 7 in some circumstances not before us today, government compulsion 8 to speak (or indeed to act) may well be more strictly limited 9 than government compulsion not to speak (or act 1 ). 10 The Soviet purge trials of the 1930's remain notorious 11 in large measure because they were marked by "confessions . . . 12 made under pressure of intensive torture and intimidation," 9 New 13 Encyclopaedia Britannica Micropaedia 808 (15th ed. 2002), 14 available at http://www.britannica.com/EBchecked/ 15 topic/483936/purge-trials (latest visit July 11, 2011) . And it 16 seems unlikely that Galileo's dispute with Church authorities 172 See Recantation of Galileo (June 22, 1633) , http://law2.umkc.edu/faculty/projects/ftrials/ galileo/recantation.html (latest visit July 19, 2011) (reproducing Galileo's attestation from Giorgio de Santillana, The Crime of Galileo 312–13 (1955)). -4- about Copernican theory, see Dava Sobel, Galileo's Daughter 231- 1 81 (1999); Jerome J. Langford, Galileo, Science and the Church 2 152-54 (3d ed. 1992), would be as infamous had he been forbidden 3 to assert -- as he apparently believed -- that the earth moves 4 about the sun, rather than forced to state publicly and contrary 5 to his conviction that the sun revolves around the earth. 2 6