May 14, 2018

Refusal to be an "informant" protected by the First Amendment


Refusal to be an  "informant" protected by the First Amendment
Burns v Martuscello, USCA Second Circuit, Docket No. 15-1631

This decision appears to be one of "first impression" concerning "speech and speech-related activity as protected by the First Amendment" by the United States Court of Appeals, Second Circuit, and while the parties involved were, respectively, a prisoner and prison administrators, it may signal that public employees may not suffer retaliation if the individual refuses to "become an informer" or give "false information" when asked to do so by his or her employer.

Mark Burns was placed in restricted custody after he refused (i) to serve as a prison informant, or (ii) to provide false information regarding an incident within the correction facility. 

Burns filed an action with a United States District Court contending that his being placed in restricted custody constituted retaliation in violation of his rights under the First Amendment, the Eighth Amendment and the Fourteenth Amendment. The District Court granted the defendant's motion for summary judgment and Burns appealed.

The Court of Appeals held the First Amendment protects a prisoner's right not to serve as a prison informant or provide false information to prison officials. However, said the court, because it had not previously recognized this speech and speech-related activity as protected by the First Amendment, it affirmed the judgment of the district court on qualified immunity grounds.

This ruling, however, raises a question: Is a public employee's refusal to serve as an informant and, or, his or her refusal to provide false information if asked to do so in the course of his or her employment protected "non-speech" by the First Amendment precluding the individual being served with disciplinary charges because of his or her so refusing to do so or otherwise suffering retaliation?

The decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/14a47a7f-a2ed-4eec-abb6-a3eb8ea3bf62/2/doc/15-1631_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/14a47a7f-a2ed-4eec-abb6-a3eb8ea3bf62/2/hilite/ 

Addendum: 

In response to an inquiry concerning false testimony given at a disciplinary hearing, NYPPL files indicate that in Alarcon v Board of Education of South Orangetown Central School District, 85 AD3d 780, the Appellate Division directed the reopening of the disciplinary hearing after the recantation of testimony given at the hearing by a witness against Alarcon.

The witness, Ramon Reyes, after testifying, but prior to the issuance of the hearing officer's report and recommendation, recanted his testimony stating that the testimony he had given at the disciplinary hearing was false and that "he gave such false testimony because his supervisor directed him to lie."

The Alarcon decision is posted on the Internet at: 
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_05055.htm


 

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