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Federal Appeals Court’s Decision Reinstating Whistleblower’s Complaint Is an Important First Amendment Victory

April 2, 2009

Federal Appeals Court’s Decision Reinstating Whistleblower’s Complaint Is an Important First Amendment Victory

Statement of Bonnie I. Robin-Vergeer, Senior Attorney, Public Citizen*

Today’s decision by the U.S. Court of Appeals for the 4th Circuit correctly recognizes that public employees, such as Baltimore police officer Michael Andrew, who go beyond their required job responsibilities in reporting government wrongdoing both internally and to the press, speak “as citizens” protected by the First Amendment.

By acknowledging the paramount value of whistleblower speech, the court sends a message that government employees do not give up their free speech rights when they go to work each morning.

Andrew, a veteran Baltimore Police Department commander, told the police commissioner in 2003 about his concerns over how the police had handled an incident that resulted in the shooting death of an elderly man. Receiving no response, Andrew contacted The Baltimore Sun, which published an article about the shooting. Following the article’s publication, the Baltimore Police Department removed Andrew from his command position.

The federal district court in Maryland dismissed Andrew’s First Amendment claim, and Andrew appealed to the 4th Circuit, based in Richmond, Va. Public Citizen, along with four other public interest groups, submitted an amicus brief in the 4th Circuit supporting Andrew.

In vacating the district court’s order dismissing Andrew’s case, the 4th Circuit in Andrew v. Clark ruled that Andrew had alleged facts in his complaint that could entitle him to relief on his First Amendment claims and, accordingly, that his case should be allowed to proceed. In particular, the court found that the district court had erred in concluding – contrary to the facts alleged in Andrew’s complaint – that Andrew had written his memorandum and spoken to the newspaper reporter pursuant to his duties as a police commander. The 4th Circuit agreed with Andrew and Public Citizen that the district court had misunderstood a U.S. Supreme Court ruling in Garcetti v. Ceballos, a whistleblower case argued by Public Citizen in 2006 on behalf of a Los Angeles County prosecutor.

As Judge J. Harvie Wilkinson explained in his concurring opinion, the matter upon which Andrew spoke involved “a question of real public importance, namely whether a police shooting of a citizen was justified and whether the investigation of that shooting was less than forthcoming. To throw out this citizen who took his concerns to the press on a motion to dismiss would have profound adverse effects on accountability in government.” We could not agree more.

Bonnie I. Robin-Vergeer, a senior attorney at Public Citizen, wrote the amicus brief and participated in the oral argument before the 4th Circuit in January.