Matthews NYPD Decision

132915cvMatthewsv.CityofNewYork

Inthe

UnitedStatesCourtofAppealsFortheSecondCircuit

________

AUGUSTTERM,2013

ARGUED:APRIL24,2014DECIDED:FEBRUARY26,2015

No.132915cv

CRAIGMATTHEWS,PlaintiffAppellant,

v.

CITYOFNEWYORK;RAYMONDKELLY,asCommissioneroftheNewYorkCityPoliceDepartment;JONBLOCH,adeputyinspectorintheNewYorkCityPoliceDepartment;andMARKSEDRAN,alieutenant

intheNewYorkCityPoliceDepartment,DefendantsAppellees.

________

AppealfromtheUnitedStatesDistrictCourtfortheSouthernDistrictofNewYork.

No.12cv1354PaulA.Engelmayer,Judge.________

Before:WALKERandHALL,CircuitJudges,andMURTHA,DistrictJudge.*

________

*TheHonorableJ.GarvanMurtha,oftheUnitedStatesDistrictCourtfortheDistrictofVermont,sittingbydesignation.

Case 13-2915, Document 96-1, 02/26/2015, 1446779, Page1 of 24

2

OfficerCraigMatthewsbroughtsuitallegingthattheCityof

NewYork retaliated againsthim for speaking tohis commanding

officersaboutanarrestquotapolicyathisprecinctoftheNewYork

CityPoliceDepartment(NYPD).TheUnitedStatesDistrictCourt

for theSouthernDistrictofNewYork (PaulA.Engelmayer, Judge)

grantedthedefendantsmotionforsummaryjudgment,holdingthat

Matthewsspokeasapublicemployee,notasacitizen,andthathis

speech was thus not protected by the First Amendment. We

concludethatbecauseMatthewsscommentsonprecinctpolicydid

not fallwithinhisofficialdutiesandbecauseheelecteda channel

with a civilian analogue to pursue his complaint, he spoke as a

citizen. Accordingly, we VACATE the district courts grant of

summary judgment and REMAND for further proceedings

consistentwiththisopinion.

________

CHRISTOPHER DUNN, (Erin Harrist, ArthurEisenberg, Alexis Karterton, on the brief), NewYork Civil Liberties Union Foundation, NewYork,N.Y.,forAppellant.

MARTA ROSS, (Edward F.X. Hart, William S.J.Fraenkel, on the brief) for Zachary W. Carter,Corporation Counsel of the City of New York,NewYork,N.Y.,forDefendantsAppellees.

________


3

JOHNM.WALKER,JR.,CircuitJudge:

OfficerCraigMatthewsbroughtsuitallegingthattheCityof

NewYork retaliated againsthim for speaking tohis commanding

officersaboutanarrestquotapolicyathisprecinctoftheNewYork

CityPoliceDepartment(NYPD).TheUnitedStatesDistrictCourt

for theSouthernDistrictofNewYork (PaulA.Engelmayer, Judge)

grantedthedefendantsmotionforsummaryjudgment,holdingthat

Matthewsspokeasapublicemployee,notasacitizen,andthathis

speech was thus not protected by the First Amendment. We

concludethatbecauseMatthewsscommentsonprecinctpolicydid

not fallwithinhisofficialdutiesandbecauseheelecteda channel

with a civilian analogue to pursue his complaint, he spoke as a

citizen. Accordingly, we VACATE the district courts grant of

summary judgment and REMAND for further proceedings

consistentwiththisopinion.

BACKGROUND

I. MatthewssSpeechabouttheQuotaSystem

Since1999,CraigMatthews,anNYPDpoliceofficer,hasbeen

assigned to the 42nd Precinct (the Precinct) in the Bronx. He

alleges that starting in 2008, unnamed supervisors in the Precinct

implemented a quota system mandating the number of arrests,


4

summons, and stopandfrisks that police officers must conduct.

Matthews also alleges that Lieutenant Mark Sedran refined the

quota system by creating a point system that awarded points to

police officers for issuing what Sedran considered good

summonses and subtracted points for less desirable summonses.

Compl. 18, Joint Appx 25. Matthews alleges that officers were

underpressuretocomplywiththequotasystem.

InFebruary2009,Matthews,believing that thequotasystem

wasdamagingtotheNYPDscoremission,reporteditsexistenceto

thenCaptainTimothyBugge, thePrecinctscommandingofficerat

thattime.InMarchandAprilof2009,Matthewsagainreportedthe

quota systems existence to Captain Bugge, and, in May 2009,

Matthews reported the same to an unnamed Precinct executive

officer.

In January2011,Matthewsmetwith thenCaptain JonBloch,

the Precincts new commanding officer, and two other officers in

CaptainBlochsoffice.Matthewstoldthemaboutthequotasystem

and stated that it was causing unjustified stops, arrests, and

summonses because police officers felt forced to abandon their

discretioninordertomeettheirnumbers,andthatitwashaving

an adverse effect on the precincts relationship with the

community.Compl.28,JointAppx28.


5

II. Matthewss Complaint and the Defendants Motion toDismiss

OnFebruary 28, 2012,Matthews filed a complaintunder 42

U.S.C. 1983 alleging that the NYPD retaliated against him in

violation of the First Amendment to the U.S. Constitution and

ArticleI,8oftheNewYorkStateConstitutionbecausehespoketo

thePrecinctsleadershipaboutthearrestquotapolicy.Althoughnot

relevant to thisappeal,which is limited to thenarrowquestionof

whetherMatthews spokeasa citizenorasapublicemployee, the

allegedactsofretaliationconsistofpunitiveassignments,denialof

overtime and leave, separation from his careerlong partner,

humiliating treatment by supervisors, and negative performance

evaluations.

OnMarch16,2012,thedefendantsmovedtodismiss,arguing

that Matthewss speech was made pursuant to his official

employment duties and was thus unprotected. The district court

(BarbaraS.Jones,Judge)grantedthedefendantsmotiontodismiss.

SeeMatthewsv.CityofNewYork,No.12Civ.1354,2012WL8084831

(S.D.N.Y.Apr.12,2012).OnNovember28,2012,apanelofthiscourt

vacated thedismissaland remanded,holding that[t]he record in

this case is not yet sufficiently developed . . . to determine as a

matter of law whether Officer Matthews spoke pursuant to his


6

officialdutieswhenhevoiced the complaints.Matthewsv.City of

NewYork,488Fed.Appx532,533 (2dCir.2012).Thepanelstated

thatdiscoverywasnecessaryas tothenatureof theplaintiffs job

responsibilities, the nature of the speech, and the relationship

betweenthetwo.Id.(internalquotationmarksomitted).

On remand, after the case was reassigned to District Judge

PaulA.Engelmayer, the followingevidencerelevant to thisappeal

wasdevelopedindiscovery.

III. MatthewssEmploymentDuties

Matthews stated in an affidavit that thevastmajorityofhis

timeasapoliceofficerisspent:

(1)goingonradioruns,whichareresponsesto911calls in the precinct, in addition to 311 requests,and requests that come through the station housetelephoneswitchboard,(2)patrollingthestreetsandvertical patrolling of local housing, (3) filling outcomplaint reports and additional forms relating tocriminalactivity,lostproperty,andmissingpersons,including interviewingwitnesses, (4)responding totraffic accidents, (5) transporting prisoners to andfrom theprecincthouse, courts,andhospitals,and(6) doing community visits with local businessesandorganizations.

JointAppx 9192.Matthewssduties are formallydefined by the

NYPDPatrolGuide,whichwascreatedtoserveasaguideforALL

members of the service, although it does not contain distinct


7

instructions for every situation that may be encountered in the

field.Foreword,PatrolGuide, JointAppx410. Section20721of

the Patrol Guide, titled Allegations of Corruption and Other

MisconductAgainstMembersoftheService,statesthat:

Allmembers of the servicemust be incorruptible.Anhonestmemberoftheservicewillnottoleratemembersof the service who engage in corruption or othermisconduct. All members of the service have anabsolute duty to report any corruption or othermisconduct, or allegation of corruption or othermisconduct,ofwhichtheybecomeaware.

Joint Appx 36. The Patrol Guide defines corruption and other

misconductas,[c]riminalactivityorothermisconductofanykind

includingtheuseofexcessiveforceorperjurythatiscommittedbya

memberoftheservicewhetheronoroffduty.Id.Italsooutlinesa

procedure for officers to reportmisconduct to the InternalAffairs

Bureauandprovides that the[f]ailure to report corruption,other

misconduct, or allegations of such act is, in itself, an offense of

seriousmisconductandwillbechargedassuch.Id.at37.

Commissioner JohnBeirne,DeputyCommissioner forLabor

Relations for theNYPD, testifiedatdeposition thataquotasystem

alone isnotmisconductbut thataquota system that results inan


8

unjustifiedstop,anunjustifiedarrest,anunjustifiedsummons,oran

adverse employment action is misconduct that must be reported.

Matthews testified that thePatrolGuidedoes not obligate him to

reporttheexistenceofaquotasystemandthathewouldonlyhavea

duty to report misconduct that violated the penal law. It is

undisputedthatMatthewsdidnotregularlymeetwithorreportto

CaptainsBuggeorBloch.CommissionerBeirne,CaptainBloch,and

CaptainBugge testified thatanofficerhasnoduty tomonitor the

conductofhisorhersupervisors.

IV. AvenuesforCivilianComplaintstotheNYPD

Patrol Guide Section 20209 states that one duty of a

commandingofficerintheNYPDisto[m]aintainasmuchpersonal

contactaspossiblewithbusiness,civic[organizations]...andother

groups ormediawith community influence and interests to keep

abreastofcommunitytensionsandtrends.JointAppx209.Inthis

spirit, the Precinct heldmonthlyCommunityCouncilmeetings in

which the public was invited to raise concerns about policing

practices. Captain Bloch testified that he routinely attended these

meetings,missingfewerthanfourorfiveofthepreviousthirty.

In addition to the Community Council meetings, Captain

Bugge testified that, one to three times per month, he met with

membersof thepublic, suchas localpoliticians,church leaders,or


9

members of civic associations, to discuss policing issues in the

Precinct. The minutes of one Community Council meeting reflect

thatCaptainBuggeannouncedthathewelcomesthecommunityto

call him and discuss problems. Joint Appx 246. Captain Bloch

testifiedthatinhisexperience,however,meetingswithcommunity

members outside of the Community Council meetings happened

rarely.JointAppx131.

V. TheDefendantsMotionforSummaryJudgment

On May 20, 2013, the defendants moved for summary

judgment. On July 29, 2013, the district court granted the

defendantsmotion.Thedistrictcourtheld thatMatthewssspeech

wasmadeasanemployeeof theNYPD,notasacitizen,and thus

wasnotprotectedbytheFirstAmendment.

Matthewsnowappeals.

DISCUSSION

I. StandardofReview

We review adistrict courts grant of summary judgment de

novo.NaturalRes.Def.Council,Inc.v.U.S.FoodandDrugAdmin.,710

F.3d71,79(2dCir.2013).Summaryjudgmentisonlyappropriateif

the movant shows that there is no genuine dispute as to any

material factand themovant isentitled to judgmentasamatterof


10

law.Fed.R.Civ.P.56(a).[V]iewingtheevidenceproducedinthe

lightmost favorable to thenonmovant, ifa rational triercouldnot

find for thenonmovant, then there isnogenuine issueofmaterial

factand entryof summary judgment isappropriate.Bayv.Times

Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir. 1991) (quoting

Binderv.LongIslandLightingCo.,933F.2d187,191(2dCir.1991)).

II. LegalFramework

AplaintiffassertingaFirstAmendmentretaliationclaimmust

establishthat:(1)hisspeechorconductwasprotectedbytheFirst

Amendment; (2) thedefendant tookanadverseactionagainsthim;

and (3) therewas a causal connectionbetween this adverse action

and theprotected speech.Coxv.WarwickValleyCent.SchoolDist.,

654F.3d267,272(2dCir.2011).Thedistrictcourtgrantedsummary

judgmenttothedefendantsonthebasisthatMatthewssspeechwas

notprotected.Weaddressonlythatissue.

Acourtconductsa twostep inquiry todeterminewhethera

public employees speech is protected: The first requires

determiningwhethertheemployeespokeasacitizenonamatterof


11

publicconcern.Garcettiv.Ceballos,547U.S.410,418 (2006) (citing

Pickering v.Bd. ofEduc. ofTwp.HighSch.Dist. 205,WillCnty., 391

U.S.563,568(1968)).Thissteponeinquiryinturnencompassestwo

separate subquestions: (1) whether the subject of the employees

speechwasamatterofpublicconcernand(2)whethertheemployee

spoke as a citizen rather than solely as an employee. Jackler v.

Byrne,658F.3d225,235(2dCir.2011)(citingGarcetti,547U.S.at420

22). If the answer to either question is no, that is the end of the

matter.If,however,bothquestionsareansweredintheaffirmative,

thecourtthenproceedstothesecondstepoftheinquiry,commonly

referred to as the Pickering analysis: whether the relevant

government entity had an adequate justification for treating the

employeedifferentlyfromanyothermemberofthepublicbasedon

thegovernmentsneeds as an employer.Lane v.Franks, 134 S.Ct.

2369,2380 (quotingGarcetti,547U.S.at418); see alsoPickering,391

U.S.at568.

The district court determined that Matthews spoke on a

matter of public concern and the defendantsappellees do not


12

challenge that determination here. This appeal concerns only

whetherMatthewsspokeasacitizenorasapublicemployee.The

district courtheld thatMatthews spoke as apublic employee.We

disagree with that conclusion, however, and hold that Matthews

spokeasacitizen.Accordingly,we remand to thedistrictcourt to

determine whether an adequate justification existed for treating

Matthewsdifferently fromanyothermemberof thepublic,and if

necessary,toanalyzeinthefirstinstancewhetherareasonable jury

could find that Matthews suffered retaliation as the result of

exercisinghisFirstAmendmentrights.

III. TheCitizen/EmployeeDistinction

The Supreme Court has recognized a tension in public

employment free speech cases between an employees First

Amendment rights and the common sense realization that

governmentofficescouldnotfunctionifeveryemploymentdecision

becameaconstitutionalmatter.Connickv.Myers,461U.S.138,143

(1983).Theprobleminanycaseistoarriveatabalancebetweenthe

interestsofthe[employee],asacitizen,incommentinguponmatters


13

ofpublic concern and the interestof the State, as an employer, in

promoting theefficiencyof thepublicservices itperforms through

itsemployees.Pickering,391U.S.at568.

Guidedby the SupremeCourtsdecision inGarcetti,we ask

twoquestionstodeterminewhetherapublicemployeespeaksasa

citizen: (A) did the speech fall outside of the employees official

responsibilities, and (B) does a civilian analogue exist? See

Weintraubv.Bd.ofEduc.ofCitySch.Distr.ofCityof.N.Y.,593F.3d

196,20304(2dCir.2010).

A. OfficialDuties

[W]henpublicemployeesmakestatementspursuanttotheir

officialduties, the employeesarenot speakingas citizens forFirst

Amendment purposes.Garcetti, 547U.S. at 421.Accordingly,we

haveheldthatspeechisnotprotectedifitispartandparcelof[the

employees] concerns about his ability to properly execute his

duties. Weintraub, 593 F.3d at 203 (internal quotation marks

omitted).


14

InGarcetti,theSupremeCourtadoptedafunctionalapproach

towardevaluatinganemployeesjobduties.There,adeputydistrict

attorney alleged that he had been retaliated against for writing a

memorandum recommending that a case be dismissed. The

Supreme Court held that the prosecutors memorandum to his

superiorwasunprotectedbecauseitwaspartofwhat[thespeaker]

. . .wasemployedtodo.Garcetti,547U.S.at421.Thecontrolling

factor in its decision, the Court noted, was that the employees

expressions were made pursuant to his duties as a calendar

deputy. Id. TheCourtcounseled that theappropriate inquiry isa

practicalonedirectedtotheregulardutiesoftheemployee.Id.at

424.While relevant to that inquiry, theCourt cautioned,[f]ormal

job descriptions often bear little resemblance to the duties an

employeeactuallyisexpectedtoperformandthelistingofagiven

task in an employeeswritten job description is neither necessary

norsufficient todemonstrate thatconductingthe task iswithin the

scope of the employees professional duties for First Amendment

purposes.Id.at42425.


15

We have appliedGarcettis functional approach in previous

cases.InWeintraub,weheldthataschoolteachersformalgrievance

regarding the administrations refusal to discipline a student was

unprotected speechbecausea teachersneed todisciplinehisown

students isessential tohisability toeffectively runa classroomas

part of his daytoday responsibilities. 593 F.3d at 203. We also

foundthattheteacherschoicetopursuehiscomplaintbyfollowing

theemployeegrievanceproceduresupportedtheconclusionthatthe

speech was unprotected because that procedure had no civilian

analogue.Id.

Similarly, in Ross v. Breslin, we held that a payroll clerks

speech to her superiors about pay discrepancies was unprotected

because it was part of her job responsibilities, which included

making sure pay rates were correct. 693 F.3d 300, 306 (2d Cir.

2012). We noted that the determination of whether a public

employee is speaking pursuant to her official duties is not

susceptibletoabrightlinerule,andthat[c]ourtsmustexaminethe

natureoftheplaintiffsjobresponsibilities,thenatureofthespeech,


16

and the relationship between the two. Id. Because the employee

wasexpected touncoverwrongdoingaspartofherdaily jobasa

payrollclerk,weconcludedthatherspeechwasnotprotected.

In this case, Matthews reported the existence of the quota

systemonthreeoccasionstoCaptainBuggeandononeoccasionto

anunnamedexecutiveofficerinthePrecinct.Overayearlater,after

Captain Bloch had replaced Captain Bugge as the Precinct

commanding officer, Matthews reported the quota system to him

and stated that it was causing unjustified stops, arrests, and

summonses because police officers felt forced to abandon their

discretion inorder tomeet theirnumbers and it washaving an

adverse effecton theprecincts relationshipwith the community.

JointAppx28.

MatthewssspeechtothePrecinctsleadershipinthiscasewas

notwhathewasemployed todo,unlike theprosecutorsspeech

inGarcetti,norwasitpartandparcelofhisregularjob,unlikethe

case of the teacher in Weintraub and the payroll clerk in Ross.

Matthewss speech addressed aprecinctwidepolicy. Suchpolicy


17

oriented speechwasneitherpartofhis jobdescriptionnorpartof

the practical reality of his everyday work. Section 20221 of the

NYPD Patrol Guide, which outlines the Duties and

Responsibilities of a Police Officer, reinforces this conclusion. It

lists20specificduties,butnoneincludesadutytoprovidefeedback

onprecinctpolicyoranyotherpolicyrelatedduty.SeeJointAppx

113. Matthews similarly stated that his job as a police officer

consistedof radio runs,patrols,complaint reports,andother tasks

involving enforcement of the law; it did not include reporting

misconduct of supervisors nor did it encompass commenting on

precinctwidepolicy.Matthewshadnoroleinsettingpolicy;hewas

neither expected to speak onpolicynor consulted on formulating

policy.CommissionerBeirne,CaptainBloch,andCaptainBuggeall

testified thatapoliceofficerhasnoduty tomonitor theconductof

hissupervisors.CaptainBlochandCaptainBuggealsotestifiedthat

Matthews neither met regularly with the Captains nor submitted

regular reports to them. Apart from the occasions on which

Matthews spoke to them about the quota system, he did not


18

communicate with the Precincts commanding officers beyond

occasionalhallwaysmalltalk.Insum,Matthewssactual,functional

job responsibilities did not include reporting his opinions on

precinctwidequotasystemstothePrecinctcommanders.

Wehold thatwhen apublic employeewhosedutiesdonot

involve formulating, implementing, or providing feedback on a

policythat implicatesamatterofpublicconcernengages inspeech

concerning thatpolicy,anddoesso inamanner inwhichordinary

citizenswouldbeexpectedtoengage,heorshespeaksasacitizen,

notasapublicemployee.

TheCitypoints toSection20721of theNYPDPatrolGuide,

which,asnotedearlier,statesinpertinentpart[a]llmembersofthe

service have an absolute duty to report any corruption or other

misconduct, or allegation of corruption or other misconduct, of

which they become aware. Joint Appx 36. It defines

corruption/other misconduct as [c]riminal activity or other

misconduct of any kind including the use of excessive force or

perjurythatiscommittedbyamemberoftheservicewhetheronor


19

offduty. Id.Thedistrict court reliedon thisprovision inholding

thatMatthewssreportswerepartofhisofficialduties.Webelieve

thisreliancewasmisplaced.

Matthews testified that he understood Section 20721 to

requireonlyreportsofmisconductrising to the levelofaviolation

ofpenallaw.CommissionerBeirnetestifiedthatthesectionrequires

reportsofalmosteveryviolationofthePatrolGuide..Undereither

interpretation,however, theprovisiondoesnot renderMatthewss

speechunprotected.

Matthews, in speakingout about thequota system,wasnot

reportingsuspectedviolationsoflawthatmighthaverequiredhim

toexercisehisauthoritytoarrestafellowpoliceofficerorturninan

officer forbreachofaprotocol.Matthewsadmitted thathewould

have toreportapoliceofficerwhoviolated the law,but this isnot

such a case. Here, Matthews was voicing concerns about broad

policy issues that, at most, had the potential of incentivizing a

violation of law; he was not identifying individual violations.

Matthews toldCaptainBloch that, as a result of thequotapolicy,


20

policeofficers felt forced toabandon theirdiscretion,whichwas

causingunjustifiedstops.Compl.28,JointAppx28.Matthews

wasnotflaggingspecificviolationsoflaw,butratherexpressingan

opiniononapolicywhichhebelievedwaslimitingofficerdiscretion

to not intervene in situations that, in the officers own judgment,

mightnotwarrant intervention.According toMatthews, thepolicy

resultedinstopsthatwereunjustifiedbecausenoofficerproperly

exercisingdiscretionwouldhavemade them. Inaddition,wenote

that Matthews, by reporting the quota system to the Precinct

commandersinsteadoftotheNYPDInternalAffairsBureau,didnot

followtheinternalproceduressetoutinSection20721.

EvenifMatthewssspeechweredeemedtofallwithinSection

20721, thisprovisionwouldnotbedeterminativeofwhether that

speechwasprotectedbytheFirstAmendment.IfthePatrolGuides

general duty to report misconduct were permitted to control

whether the speech of any employeewithout regard towhether

the investigationandreportingofmisconduct isan integralpartof

theemployeesdaytoday job (i.e.whatheorshe isemployed to


21

do,Garcetti,547U.S.at421)enjoyedFirstAmendmentprotection,

publicemployerscouldbeencouragedtosimplyprescribesimilarly

generalduties, thereby limitingsuchprotection forwideswathsof

employee speech.When JusticeSoutersdissent inGarcetti flagged

this risk, id.at431n.2, theCourtmajority respondedby explicitly

reject[ing]...thesuggestionthatemployerscanrestrictemployees

rightsbycreatingexcessivelybroad jobdescriptions, id.at424.To

besure,thedutytoreportmisconducthasincreasedrelevanceinthe

contextof lawenforcement,butwebelievethat it ismoreproperly

consideredaspartofthePickeringbalancinganalysisindetermining

whetherthegovernmentemployerhadanadequatejustificationfor

its actions. See supraDISCUSSION, Section II, Legal Framework; see

also Lane, 134 S.Ct. at 2381 (describing thePickering framework as

balancingtheinterestsoftheemployee,asacitizen,incommenting

uponmattersofpublicconcernand the interestof theState,asan

employer, in promoting the efficiency of the public services it

performs through its employees (citing Pickering, 391U.S. at 598

(internalquotationmarksandbracketsomitted))).


22

B. CivilianAnalogue

The existence of a comparable civilian analogue for

Matthewssspeechalsosupportsourconclusion thathespokeasa

citizen. Speech has a relevant civilian analogue if it is made

throughchannelsavailabletocitizensgenerally. Jackler,658F.3d

at 238. [A]n indicium that speech by a public employee has a

civilian analogue is that the employees speech was to an

independent state agency responsible for entertaining complaints

by anycitizen inademocraticsocietyregardlessofhisstatusasa

publicemployee.Id.at241(quotingWeintraub,593F.3dat204).

In Jackler,we held that a police officers refusal to retract a

truthfulreporttothepolicehadaciviliananaloguebecauseanon

employeecitizenmayalsorefusetoretractatruthfulpolicereport.

658 F.3d at 241. InWeintraub, on the other hand, we found the

teachers speech unprotected in part because lodging of a union

grievance is not a form or channel of discourse available to non

employeecitizens,aswouldbea lettertotheeditororacomplaint

toanelectedrepresentativeor inspectorgeneral. 593F.3dat204.


23

Unlike the teacher inWeintraub,Matthewsdidnot follow internal

grievance procedures, but rather went directly to the Precinct

commanders,withwhomhedidnothaveregular interactionsand

whohadanopendoortocommunitycommentsandcomplaints.

Matthewschoseapaththatwasavailabletoordinarycitizens

whoareregularlyprovidedtheopportunitytoraiseissueswiththe

Precinctcommanders.CaptainBlochstatedthatheattendednearly

everymonthlyCommunityCouncilmeeting. AndCaptainBugge

testifiedthatonetothreetimespermonthhemetwithmembersof

thecommunitytodiscussissuesinthePrecinct.Matthewsreported

hisconcernsaboutthearrestquotasystemtothesameofficerswho

regularlyheardciviliancomplaintsaboutPrecinctpolicingissues.

The district court found an absence of a civilian analogue

becauseMatthewshadbetteraccesstohiscommandingofficersthan

would ordinary citizens. The district court noted that Matthews

couldspeaktotheofficersmorereadily,morefrequently,andmore

privately than could an average citizen.Matthews v. City ofNew

York,957F.Supp.2d.442,465 (S.D.N.Y.2013).Wedonotconsider


24

the relativedegreeofaccess tobematerial; ratherwhatmatters is

whetherthesameorasimilarchannelexistsfortheordinarycitizen.

If courtswere to confine their focus to the degree of access, then

internalpublic employee speech onmatters ofpublic concern not

madeaspartofregularjobdutieswouldbeunlikelytoreceiveFirst

Amendment protection because, presumably, employees always

have better access to senior supervisors within their place of

employment.

Here,Matthewspursuedthesameavenuetocomplainabout

aprecinctwidepolicy aswould a concerned civilian.The channel

Matthewschosetoaddresshisconcernsaboutthequotasystemthus

reinforcesourconclusionthatMatthewsspokeasacitizen,notasa

publicemployee.

CONCLUSION

Forthereasonsstatedabove,weVACATEthedistrictcourts

grantofdefendantsmotionsforsummaryjudgmentandREMAND

forfurtherproceedingsconsistentwiththisopinion.


United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse

40 Foley Square New York, NY 10007

ROBERT A. KATZMANNCHIEF JUDGE

CATHERINE O'HAGAN WOLFECLERK OF COURT

Date: February 26, 2015Docket #: 13-2915cvShort Title: Matthews v. City of New York

DC Docket #: 12-cv-1354 DC Court: SDNY (NEW YORK CITY)DC Judge: Engelmayer

BILL OF COSTS INSTRUCTIONS

The requirements for filing a bill of costs are set forth in FRAP 39. A form for filing a bill ofcosts is on the Court's website.

The bill of costs must:* be filed within 14 days after the entry of judgment;* be verified;* be served on all adversaries; * not include charges for postage, delivery, service, overtime and the filers edits;* identify the number of copies which comprise the printer's unit;* include the printer's bills, which must state the minimum charge per printer's unit for a page, acover, foot lines by the line, and an index and table of cases by the page;* state only the number of necessary copies inserted in enclosed form;* state actual costs at rates not higher than those generally charged for printing services in NewYork, New York; excessive charges are subject to reduction;* be filed via CM/ECF or if counsel is exempted with the original and two copies.


United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse

40 Foley Square New York, NY 10007

ROBERT A. KATZMANNCHIEF JUDGE

CATHERINE O'HAGAN WOLFECLERK OF COURT

Date: February 26, 2015Docket #: 13-2915cvShort Title: Matthews v. City of New York

DC Docket #: 12-cv-1354 DC Court: SDNY (NEW YORK CITY)DC Judge: Engelmayer

VERIFIED ITEMIZED BILL OF COSTS

Counsel for_________________________________________________________________________

respectfully submits, pursuant to FRAP 39 (c) the within bill of costs and requests the Clerk toprepare an itemized statement of costs taxed against the________________________________________________________________

and in favor of_________________________________________________________________________

for insertion in the mandate.

Docketing Fee _____________________

Costs of printing appendix (necessary copies ______________ ) _____________________

Costs of printing brief (necessary copies ______________ ____) _____________________

Costs of printing reply brief (necessary copies ______________ ) _____________________

(VERIFICATION HERE)

________________________ Signature


13-291596 Opinion FILED - 02/26/2015, p.196 Bill_of_Cost_Itemized_Notice_1 - 02/26/2015, p.2596 Bill_of_Cost_Itemized_Notice_2 - 02/26/2015, p.26

Documents

Matthews NYPD Decision