Abstract

Law enforcement makes headline news for shootings of unarmed civilians, departmental corruption, and abuse of suspects and witnesses. Also well-documented is the code of silence, the thin blue line, which discourages officers from reporting improper and unlawful conduct by fellow officers. Accordingly, accountability is challenging and mistrust of law enforcement abounds. There is much work to be done in changing the culture of police departments and many recommendations for change. One barrier to transparency that has been largely ignored could be eliminated by reversal of the Supreme Court’s 2006 decision in Garcetti v. Ceballos. Criticism of the decision has been widespread, but its specific consequences for law enforcement officers who cross the thin blue line remain little examined in the legal literature. This article begins to fill that gap.

Garcetti held that when public employees speak pursuant to their job duties, their speech is unprotected by the First Amendment. This boundary creates a threshold hurdle that employees must meet before they can seek protection from retaliation for speech. Garcetti has serious consequences in the hierarchical environment of law enforcement, removing Constitutional protection from retaliation for officers who report unlawful conduct through their chain of command. Reporting through the chain of command is often required by policy, practice and culture. While the Garcetti Court suggested that whistleblower laws fill the protection gap created by the elimination of First Amendment protection for employee speech, this article demonstrates that such laws do not provide adequate protection to officers who report, or want to report, corruption and abuse in their department. To reduce the disincentive to report illegal conduct of fellow officers, the Supreme Court should return to the Pickering balancing test. The Pickering test served well for forty years as a means to both protect public employee speech and give due weight to the government employer’s need to direct and control its workforce. Furthermore, the Pickering test eliminates confusion in the lower courts in deciding when an employee is speaking pursuant to job duties and better protects the public interest in government transparency. Protecting internal whistleblowers is essential to prevent and correct government corruption in law enforcement and elsewhere. While reversing Garcetti will not solve all the problems created by the culture of silence in law enforcement, it will eliminate one barrier to reporting misconduct by reinstating constitutional protection for such reports.

Document Type

Article

Publication Date

2018

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