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It doesn’t always help to have friends in high places, says 7th Circuit

An Illinois police officer claimed he lost his job because he complained that his department had a bad habit of looking the other way when politically connected drivers were caught committing traffic violations.

Monday, a federal appeals court decided that the officer could sue for a violation of his First Amendment rights.

None of us are surprised to learn that it pays to have friends in high places. But it is comforting to know that there are those in law enforcement who do resist favoritism.

David Kristofek appears to be one of the good guys. Kristofek worked as a part-time officer for the village of Orland Hills, a community southwest of Chicago.

On Nov. 12, 2010, Kristofek arrested a driver for operating a vehicle with a suspended registration and failing to provide proof of insurance. The driver happened to be the son of a former mayor of a nearby town.

Kristofek was unimpressed when the driver played the “Do you know who I am?” card. Mayor Mom’s cellphone call during the traffic stop also wasn’t enough to prevent the driver from being hauled off to jail.

However, the situation changed when Kristofek and his prisoner arrived at the police station. According to Kristofek, as he was filling out the paperwork for the arrest, his fellow officers suddenly approached and told him to stop what he was doing.

Kristofek argued against releasing the driver simply because his mother was politically connected, but the deputy chief allegedly stepped in and ordered the driver’s release and the dropping of the charges.

This didn’t sit well with Kristofek.

Moreover, the officer became concerned that he had participated in an act of political corruption. Fearing he may have exposed himself to civil and criminal liability, Kristofek consulted an attorney. Pursuant to his attorney’s advice, Kristofek told the FBI about the arrest and about “possible political corruption” in the Orland Hills Police Department. The FBI commenced an investigation based on Kristofek’s report.

Word of the FBI investigation leaked and, on April 21, 2011, Orland Hills Police Chief Thomas Scully called Kristofek into his office. According to Kristofek, Scully was very angry about the report to an outside law enforcement agency. Proclaiming he could no longer trust Kristofek, the chief allegedly demanded the officer’s resignation. Feeling he had done nothing wrong, Kristofek refused, so Scully fired him.

Kristofek filed a civil rights suit against Scully and Orland Hills in Illinois federal court. According to Kristofek, the city violated his First Amendment rights by retaliating against him for making his charges of political corruption.

The district court dismissed the case, finding that Kristofek’s speech was not protected under the First Amendment because it did not involve matters of public concern. The district court determined that Kristofek could not succeed on this issue because, according to the complaint itself, Kristofek’s motive in spreading the word about political corruption was to protect himself from civil and criminal liability.

The 7th U.S. Circuit Court of Appeals revived Kristofek’s lawsuit, finding that the district judge improperly concluded that the fact that the officer may have acted with selfish motives precluded a finding that his speech addressed a matter of public concern.

The mistake was explained by Circuit Judge Ann C. Williams.

“The mere fact that Kristofek was motivated by his self-interest does not make it implausible that he was also motivated to help the public,” wrote Williams for a unanimous panel.

The judge explained that “if the objective of the speech – as determined by content, form, and context – is simply to further a purely personalized grievance, then the speech does not involve a matter of public concern. But if an objective of the speech was also to bring about change with public ramifications extending beyond the personal, then the speech does involve a matter of public concern.”

Applying this standard, the 7th Circuit concluded that Officer Kristofek had a viable First Amendment claim.

“Any reasonable person would understand that a report to the FBI could potentially result in widespread changes to police practices in Orland Hills,” Williams wrote. “Kristofek’s early response to the incident in November 2010 to the deputy chief, ‘that the unequal application of the law due to political considerations was improper and possibl[y] illegal,’ hints at a latent concern beyond that of his own liability.” (Kristofek v. Orland Hills)

So Kristofek will get his day in court. Yes, it’s doubtful that a win by the former officer would have much of an impact on political favoritism at the street level nationwide. But you can bet that at least Orland Hills police officers are thinking twice about giving a break to someone simply because they have a friend in high places.


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