Thursday, February 23, 2017

Former Police Officer Fails in Establishing First Amendment and Due Process Protection

The 7th Circuit recently held that the First Amendment did not protect a police officer’s speech regarding police misconduct, nor was the officer entitled to due process for reputational harm.  The case, Roake v. Forest Pres. Dist. of Cook Cty., No. 16-2976, 2017 WL 655430 (7th Cir. Feb. 17, 2017), was initiated by a former county forest preserve district police officer, Roake, who claimed that the forest preserve unlawfully retaliated against him for reporting police misconduct and harmed his reputation; what he claimed to be a violation of his procedural due process rights.

Roake had been subject to a disciplinary hearing after he brought champagne to the forest preserve police station to share with colleagues on New Year’s Eve.  Despite being told by the interviewing officer at the hearing that he would not lose his job but might receive a one or two day suspension, Roake resigned, claiming that he would had been terminated if he hadn’t.  Roake claimed that the hearing officers upheld the charges against him; however he failed to specify what those charges were.  Roake nonetheless claimed that he resigned because he saw the “handwriting on the wall.”

Roake claimed that the real reason he was disciplined was because, in 2013, he reported that another officer engaged in racial profiling in and later, in 2014, reported that he believed a fellow officer was unjustly disciplined.  Roake also claimed that the forest preserve damaged his reputation because it told other police departments, or prospective employers, that he consumed alcohol while on duty and was not eligible for rehire.

The 7th Circuit reiterated that the First Amendment only protects constitutionally protected speech and a public employee speech is constitutionally protected when he speaks “as a citizen” on matters of public concern, not when speaking pursuant to his official duties.  Reporting police misconduct to his employer was a basic part of Roake’s responsibilities as a police officer and thus, he was not speaking as a citizen on a matter of public concern.  Roake’s retaliation claim was therefore defeated.

In regards to Roake’s procedural due process claim, the 7th Circuit held that harm to reputation is not a constitutionally protected deprivation of liberty or property interest under the due process clause.  Roake would have had to show that the forest preserve “distinctly altered his legal status in addition to tarnishing his good name.”  Instead, Roake admitted that he resigned and failed to establish that he would have been terminated by the forest preserve.  This was not sufficient to show that the forest preserve altered his legal status.