Court Error – 1st Amendment

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7^th Circuit Court of Appeals

Case Name: David Kristofek v. Village of Orland Hills

Case No.: 14-2919

Officials: POSNER, FLAUM, and WILLIAMS, Circuit Judges

Focus: Court Error – 1^st Amendment

Statements made to colleagues and FBI by appellant regarding voided citations improperly  held as unprotected by the 1^st amendment.

“We find that Kristofek’s statements to Johnston, Ricobene, and the FBI were not made pursuant to his official duties. According to Kristofek, his responsibilities as a parttime police officer involved traffic enforcement and placing calls for public service and officer back-up. The fact that Kristofek’s statements bore some relation to the subject matter of his job is not dispositive. For the speech to lack constitutional protection, it must constitute “‘government employees’ work product’ that has been ‘commissioned or created’ by the employer.” Chrzanowski v. Bianchi, 725 F.3d 734, 738 (7th Cir. 2013) (quoting Garcetti, 547 U.S. at 422). Here, Scully points to no evidence demonstrating that Kristofek was responsible for pursuing or voiding citations, or for determining when and under what circumstances arrestees could be released. Compare Renkin, 541 F.3d at 773 (concluding that university professor who complained about university’s proposed use of grant funds spoke as a public employee, since administering the grant “aided in the fulfillment of his acknowledged teaching and service responsibilities”), with Nagle v. Vill. of Calumet Park, 554 F.3d 1106, 1123–24 (7th Cir. 2009) (concluding that officer’s statements concerning police chief’s proposed staffing reductions at a union meeting were made in his capacity as a union representative, not as a police officer).”

Affirmed in part

Reversed and Remanded in part

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.