Appellate Law

CA1: cop fight results in valid First Amendment claims

By S. COTUS

Welch v. Ciampa, No. 07-2470.  This is one of those frequent cases where cops and politics result in lawsuits.  See, although cops frequently tase poor people, they also like to sue each other.  It is part of cop culture, too.  They should have gone to law school. 

But what else do cops like?  Ah, misconduct.  And retaliation.  Recall elections.  And being indicted.   

Anyway, skipping over all the angst, here is what we got.

Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977 ) can be applied to political discrimination cases, but the plaintiff must actually take whatever job action or harassment being complained of. 

Since a lot of this took place in the context of a recall election, the First does, however, conclude that:

We can discern no principled basis for holding that an employee who supports an opposition group is protected by the First Amendment but one who chooses to remain neutral is vulnerable to retaliation. We recognize that a plaintiff?s active support of a candidate or cause may help the plaintiff meet her evidentiary burden of showing that the adverse employment decision was substantially motivated by her political affiliation.

Therefore, discriminating against people for being neutral can support a political discrimination claim. 

The plaintiffs partially lose on their Monell v. Dep?t of Social Servs., 436 U.S. 658, 691 (1978) claim which was essentially that the municipality put power into the kinds of people likely to engage in politically-motivated retaliation.  On the other hand, one of the defendants actually did have policy-making capability, so they plaintiffs partially win.

So, with all that in mind, the plaintiffs also get a reversal on the state whistleblower, and tortious interference claims.

Full post as published by Appellate Law and Practice on September 23, 2008 (boomark / email).