Pappas v. Giuliani

Page 143

290 F.3d 143

Thomas PAPPAS, Plaintiff-Appellant, v. Rudolph GIULIANI, Mayor of the City of New York and Howard Safir, Commissioner of the Police Department of the City of New York, Defendants-Appellees.

Docket No. 00-9487.

United States Court of Appeals, Second Circuit.

Argued: November 16, 2001.

Decided: May 13, 2002.

Christopher T. Dunn, Amicus Curiae New York Civil Liberties Union, New York, NY, (Arthur Eisenberg on the brief), for Plaintiff-Appellant.

Rosemary Carroll, Carroll & Friess, New York, NY, on the brief for Plaintiff-Appellant.

Margaret King, for Michael D. Hess, Corporation Counsel of the City of New York, New York, NY, (Edward F.X. Hart, Bryan D. Glass, Marta Ross, of counsel), for Defendants-Appellees.

Before LEVAL, SOTOMAYOR, Circuit Judges, and McMAHON, District Judge.^*

LEVAL, Circuit Judge.

This appeal raises the question whether a municipal police department may, without violating the First Amendment's guarantee of freedom of speech, terminate a police officer by reason of the officer's anonymous dissemination of bigoted racist anti-black and anti-semitic materials. Appellant Thomas Pappas brought this suit under 42 U.S.C. § 1983 against officials of the City of New York and the New York City Police Department (N.Y.PD) alleging that he was unconstitutionally fired from his employment by the police department by reason of his exercising rights of free speech protected by the First Amendment. The United States District Court for the Southern District of New York (Buchwald, J.) granted the defendants' motion for summary judgment. We affirm the district court.

Background

Pappas was employed by the New York City Police Department (N.Y.PD) from January 25, 1982 until his termination on August 18, 1999. At the time of his termination, Pappas worked in the Department's Management Information Systems Division (MISD), which was responsible for maintenance of its computer systems.

On at least two occasions in 1996 and 1997, Pappas received letters from the Mineola Auxiliary Police Department (MAPD) soliciting charitable contributions and enclosing reply envelopes for use in sending contributions. Pappas stuffed the reply envelopes with offensive racially bigoted materials and returned them anonymously. The materials included printed fliers conveying anti-black and anti-semitic messages. The fliers asserted white supremacy, ridiculed black people and their culture, warned against the "Negro wolf... destroying American civilization with rape, robbery, and murder," and declaimed against "how the Jews control the TV networks and why they should be in the hands of the American public and not the Jews."

Upon receipt of these materials, the Nassau County Police Department then undertook an investigation in the hope of identifying the sender. It sent out a charitable solicitation mailing with coded return envelopes. Once again, a response envelope was returned, stuffed with similar racist materials. The Nassau County Police Department traced the source to P.O. Box 321 in Mineola, New York — a post office box registered under the name "Thomas Pappas/The Populist Party for the Town of North Hempstead." The Nassau County Police Department made another mailing in 1997, with the same result.

Upon ascertaining that Thomas Pappas was a New York City police officer, the Nassau County Police Department notified the New York City Police Department's Internal Affairs Bureau (IAB), which repeated the investigative experiment, sending Pappas further charitable solicitation mailings, once again with the result that Pappas returned the reply envelopes stuffed with similarly provocative materials.

On March 24, 1998, Pappas was interrogated by a New York City police officer. Pappas at first admitted sending such materials to his friends, and, after some evasion, admitted sending the materials in response to the MAPD and other solicitations.

The NYPD charged Pappas with violation of a Departmental regulation. A disciplinary trial was held before Josefina Martinez, Assistant Deputy Commissioner of Trials. Pappas asserted at the trial that he had sent the materials because, "I was protesting, and I was tired of being shaken down for money by these so-called charitable organizations. And it was a form of protest, just put stuff back in an envelope and send stuff back as a form of protest." The NYPD and Pappas stipulated that Pappas's conduct and the subsequent investigation had been the subject of news media reports in the New York Times, Fox 5 news, ABC News on Channel 7, and a Long Island television station.

Commissioner Martinez issued a 20-page decision, finding Pappas guilty of violating a Departmental Regulation by disseminating defamatory materials through the mails, and recommending his dismissal from the force. Police Commissioner Howard Safir adopted the recommendation and dismissed Pappas.

Pappas then filed this action seeking monetary and injunctive relief, claiming that his termination violated his First Amendment rights. The district court granted the defendant's motion for summary judgment and dismissed the action.¹ This appeal follows.

Discussion

Where a government employee suing for violation of the First Amendment establishes that he was terminated by reason of his speech "upon a matter of public concern," the Supreme Court has instructed that the court's task is "to arrive at a balance between the interests of the... citizen, in commenting on matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). See also Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Under the balancing test, the governmental employer may defeat the claim by demonstrating that it "reasonably believed that the speech would potentially interfere with or disrupt the government's activities, and can persuade the court that the potential disruptiveness was sufficient to outweigh the First Amendment value of that speech." Heil v. Santoro, 147 F.3d 103, 109 (2d Cir.1998) (internal citations omitted).

There is no dispute that Pappas was terminated because of his speech and would not have been terminated were it not for his speech. The defendants contend that Pappas's anonymous sending of the bigoted materials may not be "fairly characterized as constituting speech on a matter of public concern." Connick, 461 U.S. at 146, 103 S.Ct. 1684. The First Amendment concerns itself less with speech relating to an individual's private concerns than with speech relating to matters of public concern; accordingly a public employee has greater latitude to discipline an employee over speech expressing private concerns. "When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment." Id. at 146, 103 S.Ct. 1684. "Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record." Id. at 147-48, 103 S.Ct. 1684. Because of our resolution of the Pickering balancing test, we assume without deciding that Pappas's mailings constituted speech on a matter of public concern.

Pickering's balancing test weighs the plaintiff's interest in freely speaking his mind on a matter of public concern against the State's interest in the performance of its functions. Pickering, 391 U.S. at 568, 88 S.Ct. 1731. Under our Constitutional doctrines, few values are more carefully and thoroughly protected than the citizen's right to speak his mind on matters of public concern without interference by government. Nonetheless, the right is not absolute. At times, the right of free speech conflicts with other important governmental values, posing the problem which interest should prevail. The effective functioning of entities of government could be seriously undermined by its employees' unrestrained declarations of their views. For this reason, the employee's right of free speech is sometimes subordinated to the interest of the effective functioning of the governmental employer.

The effectiveness of a city's police department depends importantly on the respect and trust of the community and on the perception in the community that it enforces the law fairly, even-handedly, and without bias. See Tom R. Tyler, Why People Obey the Law 22-23, 67 (1990) (demonstrating how belief in the legitimacy of legal authority and trust in law enforcement leads to greater compliance with law). If the police department treats a segment of the population of any race, religion, gender, national origin, or sexual preference, etc., with contempt, so that the particular minority comes to regard the police as oppressor rather than protector, respect for law enforcement is eroded and the ability of the police to do its work in that community is impaired. Members of the minority will be less likely to report crimes, to offer testimony as witnesses, and to rely on the police for their protection. When the police make arrests in that community, its members are likely to assume that the arrests are a product of bias, rather than well-founded, protective law enforcement. And the department's ability to recruit and train personnel from that community will be damaged. See David Cole, No Equal Justice 169-178 (1999) (describing the costs that the perception of inequality and disparate treatment places on law enforcement; it engenders distrust and unwillingness to cooperate and encourages crime), Brandon Garrett, Note, Standing While Black: Distinguishing Lyons in Racial Profiling Cases, 100 Colum. L.Rev. 1815, 1833 nn. 72-3 (2000) (describing social...