7th Circuit: High court ruling chills protections for ex-cop's speech

By David L. Hudson Jr.
First Amendment scholar

A former Illinois State Police lieutenant’s comments about the handling of a so-called “cold case” may have been protected when he uttered them in 2003, but a federal appeals court has found that such speech isn’t protected now.

The 7th U.S. Circuit Court of Appeals last month reversed a 2005 federal jury’s six-figure verdict in favor of Michale Callahan, basing its decision on the U.S. Supreme Court’s 2006 ruling Garcetti v. Ceballos. In Garcetti, the Court found that public employees have no First Amendment rights when they make statements in the course of their official job duties.

The case of Michale Callahan could prove to be the vehicle through which the contours of Garcetti are clarified or the case where the Court reevaluates Garcetti.

In the 7th Circuit’s May 20 ruling Callahan v. Fermon, a unanimous three-judge panel used the standard from Garcetti to find that Callahan’s statements about a cold case and his superiors were unprotected job-related speech, rather than protected citizen speech.

Callahan, who is now retired, claimed he was transferred after he made statements critical of an old murder case and filed official complaints against superior officers.

In 2000, a private investigator sent a letter to the Illinois State Police, asking the agency to review the 1986 murder case of Dyke and Karen Rhoads. Callahan looked into the case and concluded there were serious problems with convictions of two former construction workers for the Rhoads’ slayings.

Callahan believed his investigation might have turned up the possible real killer. At the time, that person of interest was under federal investigation for unrelated crimes. Callahan also found that the person of interest had made significant donations to the political campaigns of both the state attorney general and governor.

According to the 7th Circuit opinion, Callahan reported his findings to a state police regional commander, who told him to quit the murder investigation, but who said that he could now investigate this person of interest’s other possible criminal activities. Subsequently, Callahan became involved in discussions of clemency for the two men convicted in the slayings, who eventually were freed; and in allegations against higher ranking officers of corruption and interference with the Rhoads investigation.

Later, Callahan was reassigned from the investigations unit to a patrol unit, a move he considered retaliatory. He then sued superior officers in federal district court, alleging retaliation because of his stated belief that the two convicted men were innocent, and  because of his complaints against his superiors.

In September 2003, Callahan sued Fermon and Carper in federal district court, alleging he was retaliated against for his statements to his bosses at the Police Academy meeting that Whitlock and Steidl were innocent and for his complaints against his superiors.

The case proceeded to a jury trial. In April 2005, the jury awarded Callahan $210,000 in compensatory damages, $276,000 in punitive damages against Fermon and $195,600 in punitive damages against Carper. The district court upheld the verdict but reduced the punitive damages to $100,000 against Fermon and $50,000 against Carper.

At the time of the jury’s decision, public-employee First Amendment law involved application of the Supreme Court’s 1968 decision Pickering v. Board of Education and its 1983 decision Connick v. Myers. Under the so-called Pickering-Connick test, a public employee first had to show that he or she was speaking on a matter of public concern or societal importance. Then, a court would balance the employee’s free-speech rights against the employer’s efficiency interests.

Fermon and Carper appealed the jury’s verdict to the 7th Circuit. While the appeal was pending, the Supreme Court issued its decision in Garcetti v. Ceballos, eliminating free-speech protection for public employees when they make statements pursuant to their official job duties.

The 7th Circuit panel ruled that Garcetti controlled and that Callahan’s free-speech claims should be dismissed because he did not speak as a citizen when the made the statements and complaints.

The panel, in an opinion by Judge Kenneth Ripple, explained that when Callahan spoke at the Police Academy he was speaking as an employee: “He did not speak as a citizen when he attended the meeting; he went to work and performed the tasks that he was paid to perform.”

The 7th Circuit also determined that Callahan spoke as an employee when he complained about his superiors. Illinois State Police rules of conduct provide that officers should report misconduct by other officers. “That requirement was part of his of his official responsibility as a police lieutenant,” Ripple wrote.

After the 7th Circuit ruled, Callahan told the Chicago Tribune: “It’s just an example of the government protecting misconduct — the government protecting the government. The decision doesn’t change the facts of the case. I stood up and did the right thing.”

John A. Baker, Callahan’s Springfield-based attorney, said that he has filed a petition for rehearing before the full 7th Circuit. Baker also indicated he would appeal to the Supreme Court if the petition for rehearing was denied.

“Callahan’s speech was terribly important to society,” Baker said.

“Without having police officers on the inside who see corruption and mistakes coming forward, how can the criminal justice system function? Illinois leads the nation on persons on death row who were exonerated.”

Baker criticized the Supreme Court’s ruling in Garcetti, saying that it “essentially shatters the protections of Pickering.” He added that “the decision is not very clear, as you had four justices on one side and four on another with Justice Kennedy writing the majority opinion.”