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Federal Appeals Court Decision Reinstating Whistleblower Complaint Is an Important First Amendment Victory

For Immediate Release

Bonnie I. Robin-Vergeer (202) 588-7731
Barbara Holzer (202) 588-7716

Federal Appeals CourtÂ’s Decision Reinstating WhistleblowerÂ’s
Complaint Is an Important First Amendment Victory

Statement of Bonnie I. Robin-Vergeer, Senior Attorney, Public Citizen

(Bonnie I. Robin-Vergeer, a senior attorney at Public Citizen, wrote
the amicus brief and participated in the oral argument before the 4th
Circuit in January.)

TodayÂ’s decision by the U.S. Court of Appeals for the 4th Circuit
correctly recognizes that public employees, such as Baltimore police
officer Michael Andrew, who go beyond their required job
responsibilities in reporting government wrongdoing both internally and
to the press, speak “as citizens” protected by the First Amendment.

By acknowledging the paramount value of whistleblower speech, the court
sends a message that government employees do not give up their free
speech rights when they go to work each morning.

Andrew, a veteran Baltimore Police Department commander, told the
police commissioner in 2003 about his concerns over how the police had
handled an incident that resulted in the shooting death of an elderly
man. Receiving no response, Andrew contacted The Baltimore Sun, which
published an article about the shooting. Following the articleÂ’s
publication, the Baltimore Police Department removed Andrew from his
command position.

The federal district court in Maryland dismissed AndrewÂ’s First
Amendment claim, and Andrew appealed to the 4th Circuit, based in
Richmond, Va. Public Citizen, along with four other public interest
groups, submitted an amicus brief in the 4th Circuit supporting Andrew.

In vacating the district courtÂ’s order dismissing AndrewÂ’s case,
the 4th Circuit in Andrew v. Clark ruled that Andrew had alleged facts
in his complaint that could entitle him to relief on his First Amendment
claims and, accordingly, that his case should be allowed to proceed. In
particular, the court found that the district court had erred in
concluding - contrary to the facts alleged in AndrewÂ’s complaint -
that Andrew had written his memorandum and spoken to the newspaper
reporter pursuant to his duties as a police commander. The 4th Circuit
agreed with Andrew and Public Citizen that the district court had
misunderstood a U.S. Supreme Court ruling in Garcetti v. Ceballos, a
whistleblower case argued by Public Citizen in 2006 on behalf of a Los
Angeles County prosecutor.

As Judge Wilkson explained in his concurring opinion, the matter upon
which Andrew spoke involved “a question of real public importance,
namely whether a police shooting of a citizen was justified and whether
the investigation of that shooting was less than forthcoming. To throw
out this citizen who took his concerns to the press on a motion to
dismiss would have profound adverse effects on accountability in
government.” We could not agree more.

For more information about the case and a link to the 4th CircuitÂ’s
decision, go to

Barbara Holzer
Broadcast & Marketing Manager
Public Citizen, 1600 20th St. NW
Washington, DC 20009
202-588-7716 [main: 1000]

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