DocketNumber: No. 17-1120-cv; August Term 2017
Citation Numbers: 910 F.3d 40
Judges: Droney, Hall, Jacobs
Filed Date: 12/6/2018
Status: Precedential
Modified Date: 11/2/2022
John Gorman, a former corrections officer, appeals from a judgment of the United States District Court for the Northern District of New York (Kahn, J. ) dismissing his
As to the first claim, the district court held that a reasonable officer would not have known that it was clearly established law that Gorman's speech constituted a matter of public concern, and that the defendants are therefore entitled to qualified immunity. As to the second, the district court held that Gorman failed to allege any facts that would allow a reasonable jury to infer that Patricelli intentionally interfered with Gorman's relationship with his sister. For reasons set out below, we agree. The judgment of the district court is affirmed.
*44BACKGROUND
Gorman is a former corrections officer at the Rensselaer County Sheriff's Department. Anthony Patricelli, a sergeant in the same office, had been in a relationship with Gorman's sister for 27 years until October 8, 2012, when Gorman's brother told their sister that Patricelli had been unfaithful. Later that day, Patricelli called Gorman at work and threatened, "thank your wife, thank your brother, thank you, you'll pay." Gorman alleges that Patricelli followed him around at work with a facility camera system, made threatening gestures when he (repeatedly) passed by Gorman's assignment area, and called Gorman at home proposing to break his jaw. Gorman claims that this continued until June 2013.
Gorman testified that his relationship with his sister deteriorated because Patricelli "would go after her and tell her you gotta control your brother and things like that. When he couldn't get to me, he'd go to her. When he couldn't get to her, he'd go to me and it was back and forth like that."
Gorman filed two criminal complaints against Patricelli, in February and March 2013, and obtained an order of protection against Patricelli from the Schagticoke Town Court. Gorman also filed several workplace harassment complaints.
The "eJustice program" is a digital repository for criminal justice information throughout New York, including whether an individual is wanted outside the state. In March 2013, Gorman and his brother informed the auditor of the eJustice program that Patricelli had used the system to run a background check of the man who succeeded Patricelli in a relationship with Gorman's sister, and who had a criminal record. The eJustice auditor advised Gorman and his brother to inform the Division of Criminal Justice Services ("DCJS"), and the DCJS audit led to a referral to the District Attorney. Patricelli was suspended from work and charged with misuse of the eJustice program. Patricelli pleaded guilty to "misuse of a computer," a misdemeanor.
Gorman alleges that he suffered retaliation for reporting Patricelli, including: being ordered to "take deliveries of milk trucks or bread deliveries" during his lunch break, being asked to strip-search inmates, and being somehow hit by a heavy metal door. J. App'x 383-87.
On July 14, 2013, Gorman called in sick, citing exhaustion, depression, and tightness in his chest; the next day, he was admitted to the hospital, where he stayed for three or four days. Gorman never returned to work, and he was advised by letter that his employment would be terminated effective July 15, 2014 due to his one-year absence from work. After a hearing to appeal the termination, Gorman was informed on October 1, 2014 that he was terminated effective that date; he unsuccessfully appealed to the County Civil Service Commission. Gorman v. Rensselaer Cty., 1:14-CV-0434 (LEK/DJS),
Gorman's May 2015 charge of discrimination with the Equal Opportunity Employment Commission ("EEOC") was dismissed as untimely. Id. at *5. On April 16, 2014, Gorman filed this case in the Northern District of New York. Id. The district court granted the defendants' motion for summary judgment in its entirety (without prejudice to filing state-law discrimination claims in state court), prompting this appeal.
DISCUSSION
We review de novo a grant of summary judgment, Wang v. Hearst Corp.,
I
Under the First Amendment, a public employee who speaks as a citizen on a matter of public concern is protected from the employer's retaliation. Singer v. Ferro,
"To constitute speech on a matter of public concern, an employee's expression must 'be fairly considered as relating to any matter of political, social, or other concern to the community.' " Jackler v. Byrne,
Gorman's speech was a report of misconduct by a corrections officer, which can be a matter of public concern. At the same time, the obvious context was infighting about intimate family relationships. That the report can be viewed as embodying both public and private concerns, while not clearly one or the other, provides the focus for our examination of qualified immunity.
"Qualified immunity protects public officials from liability for civil damages when one of two conditions is satisfied: (a) the defendant's action did not violate clearly established law, or (b) it was objectively reasonable for the defendant to believe that his action did not violate such law." Russo v. City of Bridgeport,
*46Garcia v. Does,
Gorman argues that his report about Patricelli's misuse of the eJustice program was a matter of public concern. The district court held that the Defendants are entitled to qualified immunity because the law was not clearly established that Gorman's complaint constituted protected speech. The district court relied on two of our cases, Jackler v. Byrne,
"Exposure of official misconduct, especially within the police department, is generally of great consequence to the public." Jackler,
At the same time, "[n]o authority supports [the] argument that reporting an alleged crime always implicates matters of public concern." Nagle,
Similarly, here, there is no indication that Patricelli or the other defendants were engaged in an ongoing pattern of misconduct that might concern the public. A single incident of official misconduct may touch on a matter of public concern, as in Jackler; but Jackler held that an instance of excessive force was a matter of public concern (in part) because it implicated public safety and because repeated instances of excessive force can result in municipal liability, which affects the public fisc.
Here, the district court granted defendants qualified immunity on summary judgment based on the "context" of Gorman's statement "as revealed by the whole record." Connick,
*47Accordingly, at the time of the alleged violations, a reasonable officer would not have known that it was clearly established law that Gorman's speech constituted a matter of public concern. The Defendants are therefore entitled to qualified immunity on Gorman's First Amendment retaliation claim.
II
The Fourteenth Amendment guarantees a substantive right under the Due Process Clause to intimate familial association, including between siblings. Patel v. Searles,
The district court held that Gorman failed to allege any facts that would allow a reasonable jury to infer that Patricelli intentionally interfered with Gorman's relationship with his sister. Several circuit courts (and district courts within this Circuit) have held that intimate association claims are limited to situations in which the state actor intentionally targets the familial relationship. See Russ v. Watts,
Relying on Adler v. Pataki,
"Historically, th[e] guarantee of due process has been applied to deliberate *48decisions of government officials to deprive a person of life, liberty, or property." Daniels v. Williams,
Gorman's second § 1983 claim is that Patricelli intentionally interfered with his relationship with his sister by repeatedly going "back and forth" between them and "tell[ing] her you gotta control your brother and things like that." Br. of Appellant 5, 36. We conclude that any impairment of the sibling relationship was at best the indirect and incidental result of Patricelli's conduct. Accordingly, Gorman has failed to identify any evidence that would allow a reasonable jury to infer that Patricelli infringed on Gorman's right to intimate associations under the Due Process Clause.
CONCLUSION
The judgment of the district court is AFFIRMED .
The majority concludes that Sergeant Patricelli and the other officers are entitled to qualified immunity for retaliating against Gorman after Gorman reported Patricelli's misuse of a confidential law enforcement database. Patricelli's misuse of that database violated not only the New York Division of Criminal Justice Services' written policies, but also New York criminal laws. Officer Gorman reported Patricelli's misconduct to the state authorities responsible for the database and, based on their recommendation, then to the state prosecutor. The retaliation and harassment by Patricelli and the other individual defendants that followed included threats and physical abuse of Gorman. Because it was well-established at the time that misuse of such a law enforcement database was of significant public concern, the defendants were not entitled to qualified immunity. I therefore dissent.
This Court has long made clear that exposing official misconduct constitutes speech on a matter of public concern. See Johnson v. Ganim ,
The majority acknowledges Jackler and that reporting police misconduct is generally a matter of public concern, but it concludes that the misconduct here was not nearly as serious as in Jackler because the mere "use of a computer program for a private purpose" did not "implicate[ ] ... public safety [ ]or the use of taxpayers' money" and did not constitute a "pattern of misconduct." The majority concludes that the particularly egregious misconduct present in Jackler and the circumstances in our more recent decision in Nagle v. Marron ,
But, unlike in Nagle , the undisputed facts show that Patricelli's criminal misconduct was of "practical significance to the general public." Nagle ,
The eJustice system provides the following information to qualified members of law enforcement and court officials:
• Criminal histories and mugshots;
• Out of state criminal history;
• Sex offender registrations;
• "Watch lists" maintained by the FBI, U.S. Treasury Department and U.S. Commerce Department;
• Other "rap sheet responses" for fingerprint-based identity transactions;
• Probation reports; and
• Departments of motor vehicle records.
Id .
Because of the sensitive information the system provides, it is no surprise that the *50policies adopted by New York State for users of the eJustice system require that it may only be used for "official business" and not for "personal activities." These policies provide that the information obtained through the database must be kept confidential, and all users are required to report "any abuse or misuse" of the system. Acceptable Use Policy for Users of NYeNet Applications , eJusticeNY Integrated Justice Portal, https://www.ejustice.ny.gov/ (follow Login button) (last visited Oct. 11, 2018).
The substantial consequences for misuse of the eJustice system are demonstrated by the penalties imposed on Patricelli for his misconduct: he was suspended from his law enforcement position for ten months, demoted, and charged with two felonies by the state; he ultimately pleaded guilty to a misdemeanor.
Nagle , by contrast, involved a situation of far more limited public effect. We held that a public school teacher was not speaking on a matter of public concern when she reported to the local police that her school's vice principal forged her signature on a class observation report to make it appear that she had received the report.
The majority now relies on that last statement in Nagle to shield the defendants in this case from responsibility, despite Patricelli's use of the eJustice system to run a check on his former girlfriend's new boyfriend. But Nagle is not that broad. We explained in Nagle that "even if [the forgery] were criminal," that act "had no practical significance to the general public."
But police misuse of a law enforcement database, like the eJustice system, undoubtedly has great "practical significance to the public," and any public official would have known that Patricelli's misuse of it for private reasons would be of substantial public concern. Nagle ,
It is also obvious to all public officials that reporting an instance of law enforcement database misuse constitutes a matter of public concern.
Finally, insofar as the majority suggests that this case is not a matter of public concern because it concerned a personally motivated dispute, that distinction is also not consistent with our prior decisions. Even if Gorman were motivated by a personal interest, we have held that where a "personal interest primarily motivated the speech," such motivation "does not, on its own, vitiate the status of the speech as one of public concern." Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Ed. ,
Here, Gorman contacted a state agency, the New York State Division of Criminal Justice Services, to report criminal misuse of a sensitive state law enforcement database. That report in turn led to a district attorney's decision to prosecute Sergeant Patricelli, a lengthy suspension without pay, a demotion, and a guilty plea. And, while it is possible that Gorman might have been motivated by personal reasons, his report touched on a serious public issue: misuse of a confidential law enforcement database. The officials who then retaliated against him would have known that, too.
*52For the foregoing reasons, I respectfully dissent.
In Patel v. Searles, we observed that "this Circuit has never held that a challenged action must be directed at a protected relationship for it to infringe on the right to intimate association."
I join the majority opinion in concluding that the district court properly granted summary judgment on Gorman's familial association claim under the Fourteenth Amendment.
While "we generally look to Supreme Court and Second Circuit precedent ... to determine whether the conduct [at issue] violated a clearly established right," Garcia v. Does ,
It is also important to note that Patricelli himself was not permitted to access the eJustice system, and only obtained the search results through asking another officer who had been qualified to obtain the information.
In reaching the conclusion that the forged signature did not have any significance to the public in Nagle , we emphasized that the signature "did not indicate agreement with the document or have any other effect beyond confirming its receipt." Nagle ,
Considerable media attention at the time of Patricelli's misconduct concerning police abuse of a central database lends significant support to this view. See, e.g. , Sadie Gurman, Across US, Police Officers Abuse Confidential Databases , Associated Press, Sept. 28, 2016, https://www.apnews.com/699236946e3140659fff8a2362e16f43; Amy Pavluk, Law-Enforcer Misuse of Driver Database Soars , Orlando Sentinel, Jan. 22, 2013, http://articles.orlandosentinel.com/2013-01-22/news/os-law-enforcement-access-databases-20130119_1_law-enforcement-officers-law-enforcers-misuse#; Angela Cruz, Lawsuits Allege Law Enforcement Officers Accessed Private Information , WPTV, Jan. 3, 2013, https://www.wptv.com/news/region-martin-county/lawsuits-allege-law-enforcement-misused-david-system; Peter Jamison, Clearwater Police Officer Could Face Felony Charge for Misuse of Law Enforcement Database , Tampa Bay Times, Nov. 29, 2012, http://www.tampabay.com/news/publicsafety/crime/clearwater-police-officer-could-face-felony-charge-for-misuse-of-law/1263744; Kim Zetter, Cops Trolled Driver's License Database for Pic of Hot Colleague , Wired, Feb. 23, 2012, https://www.wired.com/2012/02/cop-database-abuse/; Henry J. Gomez, Cleveland Police Officer Arrested, Charged with Misusing Law Enforcement Database , Cleveland.com, July 30, 2011, http://blog.cleveland.com/metro/2011/07/cleveland_police_officer_arres_1.html. Considering this attention and our prior precedent, there is no doubt a reasonable official would have known that misusing a database is a matter of public concern.
Indeed, Congress has made it a federal crime for a person to misuse a similar database. In United States v. Valle ,