Cook County Record

Sunday, February 23, 2020

Court: Police misconduct investigator's refusal to alter report about shooting not protected by First Amendment

Federal Court

By D.M. Herra | Jan 17, 2020

Chicago police suv
Zol87 [CC BY-SA (https://creativecommons.org/licenses/by-sa/2.0)]

A federal appeals panel says a Chicago police investigator can't sue City Hall for allegedly retaliating against him when he refused to say other police officers planted evidence, as the First Amendment doesn't protect his refusal to include what he believed to be false information in his official report.

Kelvin Lett sued the city of Chicago and employees in its Civilian Office of Police Accountability, claiming he was demoted and later fired for speaking against the attempt by his superior to allegedly doctor an official report on a shooting. Lett claimed the punishment violated his First Amendment speech rights.

Lett was an investigator for the office, which examines claims of police misconduct. In 2016, the office’s chief administrator told Lett his report about police response to a shooting must include a finding that police planted a gun on the victim. Lett did not believe the evidence supported that assertion and refused to add it to his report.

Soon after Lett shared his concerns with the administrator’s deputy, he was removed from the investigative team, assigned to janitorial work and later fired. Lett filed a union grievance and an arbitrator ordered the office to reinstate him and expunge his record, but he was placed on administrative leave immediately upon returning to work.

Lett sued, claiming the office had retaliated against him for what he said was a constitutionally protected refusal to include false information in his report. The district court dismissed the claims with prejudice, finding that the First Amendment protects only Lett’s speech as a private citizen, not his speech as a public employee.

“A public employee’s speech is … only protected if he spoke as a private citizen rather than in his capacity as a public employee,” Seventh Circuit Judge Amy C. Barrett wrote in the appellate decision. “Lett would have had neither occasion nor reason to refuse the request if not for his job. …The fact that Lett may have had a good reason to refuse to amend the report does not grant him a First Amendment cause of action.”

The appellate panel – which included circuit judges Michael S. Kanne and Daniel A. Manion, along with Barrett – drew heavily from Davis v. City of Chicago, a 2018 case with near identical circumstances. Like Lett, Lorenzo Davis was also an investigator in the police accountability office and refused to alter reports when his supervisor instructed him to do so. In that case, the court found revising reports at the direction of his supervisors was part of Davis’ official job duties as a public employee, and his speech in such reports was not protected.

Lett argued that Davis had been asked to alter conclusions, while he was asked to lie about matters of fact, but the court was not convinced. There was no eyewitness account of whether or not the gun had been planted, Barrett wrote. The finding was a conclusion based upon an analysis of the evidence, she said. Because Lett disagreed with his supervisor’s conclusion did not make his conclusion true and the administrator’s conclusion false, the court wrote.

Lett was represented in the action by attorneys Cass T. Casper, of Talon Law LLC, and Christopher Cooper, both of Chicago.

The city was represented by attorneys from its Department of Law.

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Organizations in this Story

U.S. Court of Appeals for the Seventh CircuitCivilian Office of Police AccountabilityCity of ChicagoTalon Law, LLCChristopher Cooper Law of

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