Mimesis Law
21 October 2019

Snitch Cops Get No Love From New York’s Whistleblower Law

Aug. 6, 2015 (Mimesis Law) — Soon after people had a chance to wrap their heads around the murder of Sam DuBose in Cincinnati, attention turned to the other officers involved.  Ray Tensing most definitely acted alone when he pulled DuBose over for the most minor of infractions, treated him as an irritation instead of a person and then shot him in the head although he, himself, was in no danger.  But before prosecutor Joseph T. Deters released the video of the shooting, Tensing told a fabricated account in an attempt to justify an unjustifiable murder.  Other cops officially backed up his story, thickening that thin blue line we hear so much about.

While prosecutor Deters has inexplicably decided not to prosecute the lying cops not named Ray Tensing, this episode has opened a good deal of conversation about what should be done to cops who lie, sometimes in official documents, to cover for their fellow officers.  We often hear cries for all those “good cops” to rise up against the “bad apples” who cause so much damage.  Instead, we only seem to see police lie, cheat and obstruct to protect one of their own, even when that cop has committed a heinous crime.  Apparently we bleed red, but cops have a bluer version running through their veins.

Admittedly, it is difficult to go against the grain and call out your co-workers for their misdeeds, but difficulty is no excuse.  If you, as a cop, lie to cover up for another cop or you fabricate information to put someone in jail, then you are a coward.  Plain and simple.  The “brotherhood” of American law enforcement that led to Ferguson and Staten Island, and now Cincinnati, places honest cops in an almost impossible position.  Changing that culture will be a steep climb indeed.

Beyond cowardice, another reason a cop may choose not to blow the whistle on bad acts or systemic corruption is the law.  Everyone is certainly familiar with the term “whistleblower.”  We may even think that since we have heard so much about it over the last twenty years, some sort of legal protection for whistleblowers must exist.  Well, in New York, whistleblower laws provide almost no cover or recourse for law enforcement personnel who speak out.

Some real life examples of New York police who decided to blow the whistle.

  1. Cop reported that his partner had been routinely violating suspects’ rights (D’Olimpio v. Crisafi).
  2. Cop reported that other officers in his precinct had asked him to take the fall for them in a botched murder investigation (Griffin v. City of New York).
  3. Traffic cop reported that his superiors specifically instructed him to not enforce Vehicle and Traffic Laws against off-duty cops (Brady v. County of Suffolk).

Each officer was retaliated against for coming forward and some even lost their jobs. Although each of these scenarios certainly seems to describe a clear act of whistleblowing, the law sees things much differently.

New York Labor Law §740 lays out the prohibitions against retaliatory personnel actions by employers. For an employee or former employee to find protection under this statute, that person must disclose something which “creates and presents a substantial and specific danger to the public health or safety.” While lying cops would seem to pose a very significant danger to public safety, New York courts have interpreted this element in a very medico-centric way.  The vast majority of cases dealing with Labor Law §740 pit health care employees against their health care facility employers.  It has been roundly decided that blowing the lid off of police corruption is not a protected act under §740.

But that is not the end of the road for our three whistleblowers (not legally, but in the common understanding of the word). While these three “good apples” filed civil actions claiming illegal workplace retaliation, the only way they were able to do so was by bringing suit for violation of their First Amendment rights to free speech.

Since these whistleblowers were not able to avail themselves of any legal protections under the state’s whistleblower statute, they had to get creative and jam a square peg into a round hole. However, only one of these officers was successful in his suit. Cop 2 was able to successfully bring a First Amendment claim, while both 1 and 3 were not. The reason? 2 was speaking as a private citizen (protected) while 1 and 3 were speaking as employees (not protected).

To be clear, all three of these officers did precisely what America has begged them to do – expose corruption. Each showed the bravery to call out corruption within the ranks and they were punished for it within their respective department. When they turned to the law for redress, a door that should have been wide open did not even exist. Instead, these whistleblowers were forced to seek redress under a free-speech theory. And when First Amendment principles are applied to police whistleblowers, the results tend to be incredibly arbitrary.

Courts have determined that a cop exposing his partner’s corruption is speaking as an employee because that corruption interferes with his ability to perform his own duties. Thus, cop A is not protected by the First Amendment. However, if cop A had exposed the exact same corruption of a cop who was not his partner, then that would likely be deemed private speech fully protected by the First Amendment. For cop C who blew the whistle on his boss for ordering favorable treatment toward off-duty cops, he would only be protected if he were, say, a narcotics officer who accidentally wandered into that traffic cop meeting.

While the police and public are attempting to deal with many incredibly complex issues, this one seems to be an easy fix. In the current political climate, it should not be that difficult to propose a measure to protect law enforcement whistleblowers. It could be as simple as adding a clause to the currently existing New York State Labor Law §740 which would define law enforcement corruption as a “substantial and specific danger to the public health or safety.”

We are a long way from the point where the “bad apple” cops will be held accountable by their honest colleagues. But for the good ones who decide that they will protect and serve the public and not their corrupt fellow officers, the least we can do is provide them legal recourse for the retaliation they are certain to endure.

Main image via Flickr/Diana Robinson

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