Underpinning the Police Code of Silence

Stephen W. Wolf

First Amendment, Summer, 2008

Cleveland Marshall College of Law

Cleveland State University


This is a paper submitted to Professor Stephen Gard

in partial fulfillment of the requirements of the class First Amendment.


I. Prolog

On a Tuesday in October, 2001 I rose at my city council meeting to speak against a proposal to raise the speed limit on a very busy commercial road within my city. The State of Ohio had begun a policy that discouraged road building and instead supported intelligent traffic systems. One part of this system included the belief that by raising the speed limit on a road as high as possible, one could then stuff more traffic onto the same road and move it quicker. The city had received the state's advice but lacked any opposing viewpoint. I spoke to what would be the ensuing problem. Raising the speed limit increases the number and severity of accidents and imposes an unacceptable cost to the citizens. I managed to get Ordinance 2001-117 sent back to committee.

The next day I arrived at work in the police department of that same city to learn from my supervisor that a meeting was in progress to determine what discipline would be given in response to my having talked to city council. The safety director and chief of police were reviewing the taped record of the meeting and typing out a transcript to be used in my prosecution. While this event did not involve internal corruption, it did define the results of speech.


II. Introduction

In 2006 the United States Supreme Court changed the law that affects police officer's speech. Prior to that, a police officer reporting corruption normally had First Amendment protection. If his or her speech was a matter of public concern and if the value of the speech offset the disruption to government operations, then the speech was protected.1 A police officer could report corruption. In the 2006 decision Garcetti v. Cebalos2, the court added a restriction that no speech could occur if the officer was speaking in his or her professional capacity. An officer reporting crime is always speaking professionally; it is their job to arrest wrongdoers. After 2006 an officer could no longer report corrupt activity by their supervisors.

The decision in Garcetti enables corruption. It offers a twisted form of approval where a duty of loyalty overrides a duty to the public interest. Those who are corrupt have a legal seal of approval to suppress those who protest. In Garcetti the Court removed the duty of a police officer to report internal corruption. With the legal authority to suppress employee whistleblowing, the culture and structure of a police department offers a fertile environment for corruption to breed further corruption.

What is Required

The United States Supreme Court must reconsider the effect of the Garcetti decision. The decisions in the circuits provide results that are already available for consideration and criticism. There must be an exception that recognizes a report of governmental corruption is of such importance that the First Amendment protections must be applied.

This Paper

The next part of this paper discusses the First Amendment protections and why public policy should allow for abundant speech. Section Four discusses pre-Garcetti speech. Section Five discusses Garcetti and its prohibitions. Section Six looks at circuit court decisions that have now relied on Garcetti. Section Seven discusses whistleblowing. Section Eight overlays the Garcetti decision on a police department. Good police officers become caught between laws requiring them to correct corruption and law enabling corrupt supervisors to silence their speech. Good police officers are defeated.

The Effect of Garcetti

The Garcetti decision has two effects. First, it may keep the supervisor or administrator from every having to answer an allegation of wrongdoing. The officer is fired or disciplined for speaking against corruption. The officer sues, arguing his or her voice should have protection. The supervisor argues that the officer was speaking in his or her official capacity and requests summary judgment against a claim of First Amendment protection. The case is tossed prior to being heard. Barring that, the supervisor has a second bite of the apple. After a trial court loss the supervisor can appeal, hoping that appellate court will overturn on Garcetti. The following shows the effect of each.

Narcotics Detective Ronald Voss (retired)

Springfield, Illinois Police Department


The Seventh Circuit praised Ronald Voss for his “honorable attempt to correct alleged wrongdoing.”3 They then denied protection, allowing him to be forced to resign his position and providing immunity for the wrongdoers.4 The Supreme Court refused to hear the case.5

Detective Voss learned that detectives of another Springfield police unit were obtaining search warrants illegally.6 Voss told his superiors of his findings.7 Assigned to witness a trial in which these detectives were to perjure themselves, Voss was confronted by the other detectives.8 Voss was thereafter subjected to a series of investigations and harassment that included his being reassigned and accosted by other officers.9 He resigned.10 The court granted immunity to the plaintiffs and Voss was left without recourse. The speech stemmed from Detective Voss's duties.11


Vice Control Detectives Alfonso Morales and David Kolatski

Milwaukee, Wisconsin Police Department


After a four day trial, a jury awarded compensatory and punitive damages to detectives who were disciplined and demoted for exposing illegal activity on the part of Milwaukee's current Deputy Chief Monica Ray.12 The detectives learned that Deputy Chief Ray was illegally harboring her brother who was wanted on two felony warrants.13 After a number of attempts to arrest the brother failed without explanation, an attempt that did not include the detective's supervisors being advised was successful.14 The Deputy Chief's brother was arrested with a knife, marijuana and cocaine.15 The on-duty supervisor called the Deputy Chief. Those supervisors ordered that the address provided by prisoner Ray, the same address as the Deputy Chief, not be included.16 The detectives listed the prisoner's home address as Milwaukee County.17 “Evidence at the trial demonstrated that this rather vague address on the report was due to Monica Ray's directive not to list her name or address on the report and to change Ray's address on the report to that of a 'fucking light pole if necessary.'” 18 The arrest paperwork was later removed and when the deputy district attorney asked why the paperwork was incomplete, he was told of the cover up.19 The district attorney performed an investigation.20 Both Detectives Kolatski and Jones were transferred from vice to the midnight shift on patrol.21 The jury awarded each officer $20,000 in compensatory damages and $65,000 in punitive damages “finding that the defendant's actions were willful, wanton and malicious.”22

The Seventh Circuit found virtually all of the speech fell outside constitutional protections and remanded the case for a new trial allowing only a small portion of the speech of only one officer.23 The United States Supreme Court refused to hear the case.24


III. First Amendment

Ironically, in Garcetti the Supreme Court remarked that “[e]xposing governmental inefficiency and misconduct is a matter of considerable significance.”25 They then go on to suppress speech that does just that.

Alexander Mieklejohn suggest that in self governance “all authority to exercise control, to determine common action, belongs to 'We, the People'”26 Every citizen should participate in the public debate and their views should not be denied because they are contrary, false or dangerous. Speech planned in furtherance of good government should be protected.

In discussing the First Amendment, Justice Brandeis confirmed that “public discussion is a political duty”.27 Whistleblowers can point to theorist who argue they should participate in self government. They argue that while it is not critical that everyone should speak, it is important that everything worth saying should be heard.28

Cass Sunstein emphasizes that First Amendment protection is principally about political deliberation. It allows a citizen to contribute to a political issue. A government is likely to be biased to a calling and free speech insures the possibility of change. Sunstein concludes “that government should be under a special burden of justification when it seeks to control speech intended and received as a contribution to public deliberation.”29

Another rationale for free speech is its effect as a checking value.30 The government has a unique capacity, a monopoly, on employing violence. Members of society have a veto power when that capacity is used inappropriately. The individual in this scenario works to bind government so as to insure it does not act inappropriately.


IV. Prior to Garcetti v. Ceballos

Prior to Garcetti, a public employee employee had the right to speak out on matters of public concern.31 The employee could still be punished, but only if the interest in the efficiency of public service outweighed the employee's interest in speaking. This resulted in a two-part test. First, the speech must be a matter of public concern. Second, the speech is weighed against the state, who is the employer, in promoting efficiency of the services it provides.32

A matter of public concern is is one that can be “fairly considered as relating to any matter of political, social or other concern to the community.”33 This resulted in a content-based inquiry on a case-by-case basis to see if there is a public concern. If not, the analysis ended.

The issue is corruption. Corruption is a matter of public concern. The First Amendment especially protects speech about misconduct in the operation of a police department.34 Police officers had a right to expose misconduct. That lied at the heart of the First Amendment.35 For example:

  • Police officers comments to their co-workers, union and police association personnel critical of the handling of an investigation was seen as protected.36

  • Internal memorandum summarizing an investigation of possible misconduct by a relative of an elected official is protected.37

  • A police officer's report to various elected officials alleging bribery and embezzlement within the department was a matter of public concern.38

The second issue is balancing. You only get here after meeting muster in the first issue, that of public concern. If the police agency's interest in the effective discharge of its duties outweighs the police officer's interest in their speech, the police agency prevails because a government employer must have wide discretion in the fulfillment of its public duties, including the right to terminate employees who hinder effective operation.39 The Seventh Circuit defined seven factors they used in balancing:40

  1. Whether the statement would create discipline problems or affect harmony among coworkers;

  2. Whether the employment relationship is one in which personal loyalty and confidence are necessary;

  3. Whether the speech impeded the employee's ability to perform their daily responsibilities;

  4. The time, place and manner of the speech;

  5. The context in which the underlying dispute arose;

  6. Whether the matter was one on which debate was vital to informed decision making; and

  7. Whether the speaker should be regarded as a member of the general public.

Other constraints were placed on police speakers. Employers were able to consider the potential disruptiveness of the speech.41 As paramilitary organizations, law enforcement agencies are qualitatively different from other governmental agencies; there is more restraint.42 Need for teamwork, etc. imposes restraints.43

V. Garcetti v. Ceballos

In a five to four decision, the Supreme Court stated, “Government employers, like private employers, need a significant degree of control over their employees' words and actions; without it, there would be little chance for the efficient provision of public services.”44 The court allowed that “[t]he First Amendment limits the ability of a public employer to leverage the employment relationship to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens.”45

Speaking as citizens about matters of public concern is no longer protected. As citizens speaking about a matter of public concern, they still must face those speech restrictions that are necessary for their employers to operate efficiently and effectively.46 “Underlying our cases has been the premise that while the First Amendment invests public employees with certain rights, it does not empower them to 'constitutionalize the employee grievance.'”47

The Supreme Court held that “When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employee discipline.”48

“Official duties” becomes the test. The proper inquiry is a “practical one” because “formal job descriptions often bear little resemblance to the duties an employee actually is expected to perform, and the listing of a given task in an employee's written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee's professional duties for First Amendment Purposes.”49 The circuits, while differing, give broad latitude to official duties.50

Dissent of Justice Souter

Justice Souter said, “If there is a public or private interest in addressing official wrongdoing and threats to health and safety, those outweigh the government's stake in the efficient implementation of policy – public employees who speak out on those topics deserve First Amendment protection.”51 If a government employee comments on matters of “unusual importance” and satisfies “high standards of responsibility” in doing so, the individual should be entitled to the protection of the First Amendment.52 He specifically mentions that providing truthful court testimony “must surely be analyzed independently to protect the integrity of the judicial process”.53 This came to fruition in the Eleventh Circuit decision Green v. Barrett in which an employee's court testimony was found unprotected.54


VI. Case Law After Garcetti v. Ceballos

The Seventh Circuit stands out due to the cases that have been presented and the decisions made. It is clear that in this jurisdiction an officer has no right to speak.

  • A trooper was disciplined for suggesting two innocent people had been arrested as a result of retaliation. The court found that due to an internal regulation requiring he report misconduct to his supervisor, the comment was part of his official duties.55

  • Discipline was used as an officer was reassigned from a task force and passed over for promotion after allegations made that members of his task force tipped off the target of a drug raid. He was not reporting as a citizen, his speech was unprotected.56

  • Reexamination of a jury award due to retaliatory actions against a correction officer due to her workplace speech due to Garcetti results in negation of the protection.57

  • Statements made by a law enforcement officer to a county prosecutor that he believed, after what was said at another meeting, that another officer was not going to testify truthfully during a sentencing hearing were made pursuant to his official duties.58

  • A complaint to an assistant prison superintendent that her immediate supervisor had prevented her for searching the vehicles of two higher ranking officers entering the prison, which she was required to search, was unprotected.59

  • The two example cases cited in the introduction were decided by this court.

In one unusual ruling, the Seventh Circuit found a union representative could speak to a city council.60

The Third Circuit came out in support of Garcetti and against a right to speak in two cases:

  • State Trooper requested an investigation of his child's teacher and went to the media without, as the regulations required, the permission of his supervisor. While a matter of public concern, the trooper's right was trumped by the local regulation. The circuit gave significant weight and deference to local regulations.61

  • State Troopers are disciplined for complaining about improper range operations, including poisoning and equipment malfunctions. The range was closed and the state auditor reviewed the memorandums from the troopers. They were also read to the press which is against a local regulation.62

The Fourth Circuit allowed administrative to define what is of public concern:

  • The court felt that the claim of a police officer making as to being sexually harassed may or may not be of the public concern and her employer should be excused for guessing wrong (that sexual harassment claims are not of public concern).63

Only the Ninth Circuit was presented with a case and found in support of the officer.

  • Sexual abuse suffered by a prison guard was reported to a senator. She sued after being disciplined and was awarded compensatory and punitive damages. She was awarded attorney fees. The Circuit found support citing the officer wrote the letter to the senator off duty, on her own stationary, listing her home address and the letter did not seek a remedy. It only reported events at the facility. The court found the letter was protected speech.64

Other cases were heard by these courts regarding more clear violations deserving suppression. For example, an officer's outrageous media rants followed by scathing articles critical of the operation of the police department were found unprotected.65

The Garcetti suppression is not limited to police officers. For example, in the Eighth Circuit a water department employee who spoke on improprieties involving two water department projects was found unprotected.66


VII. Whistleblowing

Duty to the Public Interest

The ninth section of the Code of Ethics for Government Service requires that one “[e]xpose corruption whenever discovered.”67 Whistleblowing puts the employee in a lose-lose situation. There is a duty of loyalty to the organization that is pitted against a loyalty to the public interest.68 The employee becomes guilty by speaking or guilty by remaining silent.69

States require their law enforcement officers enforce the law.70 An unusually extensive 2000 study of law enforcement attitudes of whistleblowing revealed that while officers believe wrongdoers should be reported, they rarely turn them in.71 For example:

  • Eighty percent do not believe there is a code of silence.72

  • One quarter of all police officers won't blow the whistle.73 It just isn't worth it.

  • Fifty-two percent expect officers turn a blind eye to improper conduct.74

  • Sixty-seven percent would expect severe repercussions.75

  • Sixty-one percent expect that even serious abuse will not be reported.76

While states require police report corruption, few will take the chance due to serious repercussions.

Duty of Loyalty

The administration makes the argument for the duty of loyalty. Whistleblowing weakens the chain of command, diminishes the effectiveness of the department, unsettles employee confidence and creates unpredictability.77 The costs include the damage to the structure of the organization, to the chain of command.78 It puts limits on supervisory control.79 Employee actions become unpredictable.80

Some researchers suggest that the damage whistleblowers cause is often severe. Opposing pressures should be balanced.81 An unsure interest to the public good should be balanced against the substantial damage to the organization.82

For a number of reasons an agency might not attack exposed corruption but instead attack the whistleblower.83 Admitting corruption makes them appear less accountable than they must be. Organizations must be predictable as that gives a expectation of stability. Corruption makes them look unstable. The corruption might be part of the culture-whole organizations might rely on corruption to function. Low-level whistleblowing is an attempt to gain control over the will of higher-level supervisors; it disrupts the chain of command. Above all, other tactics maintain stability. “Whistleblowing is about the quirky individual speaking out in a situation of moral ambiguity.”84 An organization can transform the act of whistleblowing into an act of disobedience.85 The same end is achieved no matter if whether the corruption or the whistleblower is removed. Stability is returned. By attacking and eliminating the whistleblower, the the end is obtained in a more efficient manner than it would be by attacking the alleged corruption.

Garcetti, Public Interest and Loyalty

In Garcetti, the Court gave full deference the duty of loyalty. They said that when speaking publicly “the employees are not speaking as citizens.” In Garcetti, the Court relieved police officers observing corrupt criminal activity within their department from the duty to report such activity. When there is to be a contest, loyalty must win.

The Effects of Whistleblowing

A whistleblower's fate is a sorry lot. Little offers protection. Neither seniority in the organization or high rank protects a whistleblower.86 The choice of exposure, be it going public to a newspaper or private disclosure to a supervisor does not affect the outcome.87 Two-thirds are fired and they rarely get their jobs back.88


VIII. Police Structure and Whistleblowing

A police department relies on two structures in its operation.89 There is a structure of rank. At the top levels this provides policy and direction. Through the whole structure it provides supervision and discipline. Tasks are done through the second structure, that of specialization. Some jobs are highly specialized, requiring training and coordination. SWAT units and bomb disposal teams are examples. Others specializations define the operation. A typical department will be divided up into patrol, investigation, support and administration.90

Structural Failure and the Surgical Extraction of the Bad Apple

Structural failure occurs when operation, procedures and processes that are functioning according to design lead to failure.91 Failure is met first by the supervisors who characterize failure as localized to specific officers.92 Surgical extraction of the problem officers, the bad apples, is the fix.93 Only in rare high profile failures will organizational failure enter the discussion.94 Structural failure results in the removal of whatever bad apple is involved.

Having recognized a failure, there is a strong motive to quickly deemphasize the event.95 Unless action is taken, the messenger, most often the Chief, is assigned the blame.96 The Knapp Commission, investigating failures in New York City, cited three reasons.97 The administrators and supervisors want to preserve moral, preserve their public image and maintain the effectiveness of their departments. The surgical extraction of the bad apples meets these goals and deemphasizes the problem.

Surgical Extraction of the Whistle Blower Solves the Complaint of Corruption

Indications of structural failure involving a whistle blower follow the same path. First, there is an early, proactive response, followed by a desire to surgically remove the problem. As the whistle blower's claims are allegations, the opportunity then exists to define the problem. Defining the whistle blower as the problem offers the opportunity to move on in the process. Extraction of the whistle blower solves the problem.

Garcetti and the Structures of a Police Department

The decision in Garcetti does not just support actions that have always been taken by a police department. Instead, Garcetti offers a preemptive strike. The officers attempting to report corrupt activity cannot get their information out. There is no manner in which they can avoid being disciplined or dismissed. In the name of order, corrupt supervisors can selectively choose to whom and at what level punishment is to be applied in order to suppress the speech. Other officers who might talk are then assured their fate will be sealed in the same manner.


IX. Police Bureaucracy

Separate from the structure of the police department is their bureaucracy. Bureaucracy works over the structures of rank and specialties. It is defined by the behaviors which are exhibited by administrators who seek goals and operators who perform tasks. Cultures evolves and act toward goals and away from activities that are not oriented to the goals of that particular group.

This section draws heavily on the work of Professor James Q. Wilson as described in his book Bureaucracy: What Government Agencies Do and Why They Do It.98 Professor Wilson captures the interactions of government. This small part of his work has been extracted as it best describes the interaction between governments and whistleblowers.

Tasks Versus Goals

There are executives and administrators who see to the goals and tasks to be performed by operators on the street. Government is given unclear tasks that lead to vague goals for which there normally is no test as to if the agency is meeting its goals.99 A mission to “protect and serve” provides no guidance as to the implementation of the goal of “protection” or how “service” is to be rendered. When goals are vague, circumstances, such as the situations that the operator must cope with every day, become important.100 “When goals are too vague or ambiguous to permit them to become a ready basis of task definition, the tasks will often not be shaped by executive preferences but by incentives valued by the operators.”101 An executive goal requiring the removal of illegal aliens back to their country of origin finds the on-street operators faced with questions of unclear law, civil rights and justice. If achievement is found in counting arrests, then the operators will use that ambiguity to their favor. Unable to speak Spanish, an English speaking officer might arrest an immigrant Hispanic, Spanish speaking male for obstruction when that male is unable to understand he must provide his name, date of birth and other required information. The goal is met when the Hispanic is deported because of the arrest. The criminal charge, the obstruction, is inconsequential. Goals are achieved. The vague goal allowed operators to define their own solutions, perhaps different than administrators, perhaps not.

The organization seeks stability. An officer complaining of internal corruption brings instability. Executive preference would prefer that the corruption be removed and stability be restored. To the operator, the restoration of stability is the goal, not necessarily the removal of the corruption. One way to obtain the goal occurs when the the operator can remove the corruption. That is not preferred when it is the corruption is internal to the operator. The corruption may be integrated into the organization. Removing the complaint attains the same goal; it restores stability. It does so with efficiency. The goals of the executive and operator are the same. Their tasks are quite different.


Spread over the structures of rank and specialty is culture. A culture is a “persistent, patterned way of thinking about the central tasks of and human relationships within an organization.”102 A culture is the personality of the organization. It is passed on and changes slowly, if at all.103 Culture allows the members to cooperate. It act to the good of the cooperative whole. Having many goals and engaging in many tasks, the agency finds itself with many different cultures. Those cultures compete and that competition works against a shared sense of purpose.104 In a police department there are cultures defined in the executive that differ with those of the operators. There are cultures in the bureaus and squads that perform specific tasks, each of which is different and often compete with others.

Different cultures present problems. Tasks not part of the culture will be attended to with less energy and resources. Resistance will arise to tasks not part of the dominant culture.105 If the task is the arrest of a known criminal, ambiguity regarding the processes that lead to that arrest are met with resistance. The courts have a vastly different culture than does law enforcement. Constitutional provisions that dominate the courts are but a nuisance to the police.

Whistleblowers present a threat. The culture of the organization acts to the good of the cooperative whole.106 It acts against the whistleblower.

In a police department, many cultures can exist. The culture that defines the administration is not that which defines the working officer. A culture that exists in a detective bureau is not the same as that which exists in a bomb squad.

A culture that expresses the value of honesty cannot exist beside a culture of corruption. A dominant culture will most often arise through rank. Even same-rank, cross-cultural disputes will spawn a dominant culture most often through the supervisor. It is rank that allows a culture to dominate. If rank participates in corruption, or had appointed those involved in the corruption, a resolution will not occur through the elimination of the corruption. Another solution must be found. Garcetti gives rank that solution-eliminate the whistleblower.

Garcetti and Police Bureaucracy

Police structures of rank and specialty offers assurances that properly placed discipline can be used to suppress speech. Police bureaucracy provides a hotbed of opportunity in which suppression can occur and corruption can spread. Control is accomplished via structures. Behaviors are normalized through the bureaucracies.

Members of an organization must cooperate. If the agency uses suppression to normalize corruption, then corruption becomes the norm. Members who once would attack corruption are redirected to turn a blind eye. However, those turned from the attack are unusually motivated officers. In a culture allowing corruption, a motivated officer is turned from the public interest will use that drive in other ways. Corruption breeds corruption. Garcetti enables corruption.


X. Conclusion

With Pickering in place, police officers were able to join the discussion and interject information believed relevant to the public concern. Now, with the changes brought by Garcetti, supervision has a preferred, more efficient manner in which to answer such an officer. The officer is suppressed. Unlikely to have the resources to support a sure appeal, with Circuits likely to overrule the officer, and with the Supreme Court refusing to reconsider Garcetti, the officer has no choice but to acquiesce to the culture. The danger continues when the culture that suppressed the officers then begins to define them.

Garcetti must be reconsidered. As governmental agencies become familiar with their new-found Garcetti rights and as those rights start to permeate the culture, controlling culture through self-regulation will not be possible.


X. Epilogue to my October, 2001 talk to city council

My part in speaking to city council was not to sway them to a particular decision. Instead, my goal was to provide them with information they may not have considered. More information cannot help but insure a better decision.

Two weeks after city ordinance 2001-117 was sent back to committee, it was returned to council with the determination that they did not believe accidents would increase. It was passed at that meeting by unanimous vote.

I was not disciplined for my part in the discussion leading up to the cause of these actions. I was able to participate and council was able to act having additional knowledge available to help them in making their determination.107


1 Pickering v. Board of Educ., 391 U.S. 563 (1968).

2 126 S.Ct. 1951 (2006).

3 Voss v. Kliment, 506 F.3d 565 at 572 (7th Cir. 2008).

4 Id. At 568.

5 2008 U.S. LEXIS 4445 (U.S., May 27, 2008).

6 Voss, 506 F.3d. At 566.

7 Id. At 567.

8 Id.

9 Id. At 567-68.

10 Id.

11 Id. At 570.

12 Morales v. Jones, 494 F.3d 590 (7th Cir. Wis. 2007).

13 Id.

14 Id. At 593.

15 Id.

16 Id.

17 Id.

18 Id. At 600.

19 Id. At 595.

20 Id. at 594-595.

21 Id. at 595.

22 Id.

23 Id. at 599.

24 Morales v. Jones, 2007 U.S. App. LEXIS 20701 (U.S., Aug. 17, 2007).

25 126 S.Ct. at 1962.

26 Mieklejohn, Alexander. Free Speech and Its Relation to Self-Government (University of Chicago Press: Chicago), 1962:15-16.

27 Whitney v. California, 274 U.S. 357, 375 (1927).

28 Meiklejohn, Alexander. Free Speech and Its Relation to Self Government (New York: Harper), 1948.

29 Sunsein, Cass. Free Speech Now. 59 University of Chicago Lw Review 255, 263-267.

30 Blasi, Vincent. The Checking Value in First Amendment Theory. 1977 American Bar Foundation Research Journal: 521

31 Pickering v. Board of Educ., 391 U.S. 563, 568 (1968).

32 Walters v. Churchill, 511 U.S. 661, 668 (1994).

33 Connick v. Myers, 461 U.S. 138, 146-148 (1983).

34 Kinney v. Weaver, 301 F.3d 253, 276 (5th Cir. 2002)

35 Meyers v. Hasara, 226 F.3d 821, 826 (7th Cir. 2000)

36 Gustafson v. Jones, 117 F.3d 1015, 1017-1019 (7th Cir. 1997)

37 Delgado v. Jones, 282 F.3d 511, 517-18 (7th Cir. 2002).

38 Hare v. Zitek, 414 F.Supp.2d 834. 856 (N.D. Ill. 2005).

39 Arnett v. Kennedy, 416 U.S. 134 (1974).

40 Caruso v. Deluca, 81 F.3d 666 (7th Cir. 1996).

41 Caruso v. Deluca, 81 F.3d 666, 671 (7th Cir. 1996).

42 Kelley v. Johnson, 425 U.S. 238 (1976) (need for discipline)

43 Breuer v. Hart, 909 F.2d 1035, 1040 (7th Cir. 1990). See also, Shandra v. City of Kennett, 993 F.2d 1337, 1334 (8th Cir. 1993).

44 126 S.Ct. at 1958.

45 See Perry v. Sindermann, 408 U.S. 593, 597 (1972).

46 See e.g., Connick v. Meyers, 461 U.S. 138, 147 (1983) (“Our responsibility is to ensure that citizens are not deprived of fundamental rights by virtue of working for the government”).

47 126 S.Ct. at 1959 (quoting Connick v. Myers, 461 U.S. 138, 154 (1983).

48 Id. at 1960.

49 Id. at 1961-62.

50 See Section VI which describes appellate activity.

51 Id at 1963.

52 Id at 1967.

53 Id at 1973.

54 Green v. Barrett, 226 F.App'x 883 (11th Cir. 2007).

55 Callahan v. Fermon, 2008 U.S. App. LEXIS 10800 (7th Cir. Ill. May 20, 2008).

56 Sigsworth v. City of Aurora, 487 F.3d 506 (7th Cir. Ill. 2007).

57 Spiegla v. Hull, 481 F.3d 961 (7th Cir. Ind. 2007)

58 Dillon v. Fermon, No. 04-CV-2029, 2006 U.S. Dist. LEXIS 59650 (C.D. Ill. Aug. 23, 2006).

59 Spiegla v. Hull, 481 F.3d 961 (7th Cir. 2007).

60 Fuerst v. Clarke, 454 F.3d 770 (7th Cir. Wis. 2006)

61 Meenan v. Harrison, 2008 U.S. App. LEXIS 3025 (3d Cir. Pa. Feb. 12, 2008)

62 Foraker v. Chaffinch, 501 F.3d 231, 241 (3d Cir. Del. 2007)

63 Campbell v. Galloway, 483 F.3d 258 (4th Cir. N.C. 2007)

64 Frietag v. Ayers, 463 F.3d 838 (9th Cir. 2006).

65 Nixon v. City of Houston, 511 F.3d 494, 498 (5th Cir. Tex. 2007)

66 McGee v. Pub. Water Supply, 471 F.3d 918 (8th Cir. Mo. 2006)

67 Code of Ethics for Government Service, http://www.lexrex.com/enlightened/laws/ethics.htm House Document 103, 86th Congress, 1st Session - Passed by the Congress of the United States on July 11, 1958.

68 Bok, Sissela.”Blowing the Whistle.” In Public Duties: The Moral Obligation of Government Officials, edited by Joel L. Fleishman, Lance Liebman, and Mark H. Moore. (Cambridge, MA: Harvard University Press, 1981). at 207.

69 GAP at 5.

70 For example, in Ohio, Ohio Revised Code Section 2921.44, entitled “Dereliction of Duty”, requires that “[n]o law enforcement officer shall negligently ... [f]ail to prevent or halt the commission of an offense or to apprehend an offender, when it is in the law enforcement officer’s power to do so alone or with available assistance.”

71 David Weisburd et al., Police Attitudes Towards Abuse of Authority: Findings from a National Study, Nat'l Inst. Of Justice Research in Brief (U.S. Dept. of Justice Office of Justice Programs, Washington, D.C.), May 2000, available at http://www.ncjrs.gov/pdffiles1/nij/181312.pdf. This is a study sampling 5,042 police departments and claiming coverage of over ninety percent of all police officers.

72 Id. at 3.

73 Id.

74 Id.

75 Id.

76 Id at 5.

77 Johnson, Roberta Ann. Whistleblowing, When it Works and Why (Lynne Rienner Publishers, Inc.: Boulder), 2003 at 75.

78 Miceli, Marcia P. and Janet P. Near, Blowing the Whistle (Lexington Books: New York), 1992. at 9-10.

79 Id.

80 Id.

81 Bok at 207.

82 Id.

83Cite to miceli

84 Alford, C. Fred. Whistleblowers, Broken Lives and Organizational Power (Cornell University Press: Ithica, NY), 2001 at 31

85 Id at 32.

86 Alford at 19.

87 Alford at 20.

88 Alford at 19.

89 O'Hara, Patrick, Why Law Enforcement Organizations Fail (Durham: Carolina Academic Press, 2005): 47.

90 In the 1990s the federal government stressed an alternative forms of action called community policing. Community policing officers were supported with grants. These officers did not focus on the crime committed or on preventative patrol. Instead, they focus on building a close police-community relationship. That relationship is relied on to lower crime. This involved problem solving and alternative supervisory structures that subverted the normal rank structures. This did not, however, extinguish the core requirements that involve officers need to watch for and respond to crime. Community policing officers are typically extinguished with the grants that supported them. See Trojanowicz, Robert C., Community Policing: A Contemporary Perspective (Cincinnati, Ohio: Anderson Publishing, 2002).

91 O'Hara, supra at 52.

92 Id. at 16-17.

93 Id. at 6.

94 Id. at 15.

95 Ivkovic, Sanja Jutnjak, Fallen Blue Knights (Oxford: Oxford University Press, 2005): 107.

96 Geller, William A., ed., Local Government Police Management (Washington, D.C.: ICMA, 1991): 241.

97 Knapp Commission, The Knapp Commission Report on Police Corruption (New York 1972): 210-213.

98 Wilson, James Q. Bureaucracy: What Government Agencies Do and Why They Do It (Basic Books, Inc: New York), 1989: 32-33.

99 Id at 32-33.

100 Id at 36.

101 Id at 48.

102 Id at 91.

103 Id.

104 Id at 96.

105 Id at 101.

106 Id at 91-92.

107 Between 2001 and 2002, accidents in this area increased fifteen percent and remained there through at least 2003. An intersection in the area took its place as the number one accident location in the city. Four years later, on October 5, 2005, the city was advised by the Ohio Department of Transportation that the area involved was designated as a “Hot Spot Location” due to the high number of motor vehicle crashes. Their statistics indicate that almost sixty-one percent of the accidents are rear-end accidents. Rear-end accidents occur when a driver fails to maintain an assured clear distance ahead. They are indicative of excessive speed.

The author is a Lieutenant with the North Olmsted, Ohio Police Department.  He has a Bachelor of Arts in Urban Studies (Public Safety Management) and a Masters in Public Administration both from the Levin College of Urban Affairs at the Cleveland State University.