Latino Officers Association, Anthony Miranda, and Hiram Monserrate v. Howard Safir, Commissioner of the New York City Police Department, and the New York City Police Department

Citations: 170 F.3d 167; 14 I.E.R. Cas. (BNA) 1558; 1999 U.S. App. LEXIS 3450Docket: 97-7957

Court: Court of Appeals for the Second Circuit; March 4, 1999; Federal Appellate Court

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Defendants-appellants, the New York City Police Department (NYPD) and Commissioner Howard Safir, appeal a July 30, 1997, order from the U.S. District Court for the Southern District of New York that enjoined the enforcement of NYPD Patrol Guide Procedure 114-8. This Procedure imposed restrictions on officers' public statements concerning police matters, requiring prior notice to the department, approval before speaking, and a written summary of speeches afterward. It also prohibited officers from speaking at public hearings without a superior present. The district court found these restrictions violated the officers' First Amendment rights, issuing a preliminary injunction against enforcement. The City subsequently withdrew its appeal regarding certain provisions, leaving the notice and reporting requirements as the remaining issues. The appellate court found the record insufficient to justify the preliminary injunction against these provisions and vacated the district court's order, allowing plaintiffs the option to seek a permanent injunction based on a more complete record. Plaintiffs challenged the Procedure under 42 U.S.C. § 1983, arguing it infringed their right to free speech, with the Procedure's aim being to notify the Police Commissioner of any planned public statements by officers.

The Procedure in place for over ten years prior to the stipulation included four key requirements: 

1. **Notice Requirement**: NYPD members invited or subpoenaed to testify must submit a written notification detailing the agency's name, location, and the type of proceeding at least five business days before their appearance. 
2. **Approval Requirement**: Prior written approval from the Commissioner is mandatory for voluntary appearances. 
3. **Reporting Requirement**: Officers must provide a summary of their testimony or statement, including questions and answers, to the Commissioner by the next business day after the appearance. 
4. **Supervision Requirement**: Officers cannot give testimony at public hearings without a supervisor present, unless prior approval is received.

The Latino Officers' Association (LOA), formed in 1996 with approximately 1500 members, claimed that its leaders, including plaintiffs Miranda and Monserrate, became aware of this Procedure's applicability in 1997 and subsequently filed a lawsuit. The complaint details that in early 1997, LOA officers received credible warnings about potential disciplinary actions for their public statements, leading to a significant reduction in their public engagements.

Miranda attempted to gain permission to speak before the City Council on January 14, 1997, but was denied, as was a later request on April 17, 1997, to address an LOA press conference regarding NYPD statistics on minority officers. Following these denials, Miranda and other LOA members curtailed public speaking engagements, rejecting invitations to media appearances and interviews. 

The City disputes the occurrence of the January 14 denial, claiming that had Miranda requested permission in his capacity as LOA President, it likely would have been granted. For the April 17 request, the City asserts Miranda misrepresented the conversation, stating he could speak on behalf of the LOA without needing permission.

Throughout the litigation, the City has argued that the Procedure does not apply to NYPD members' communications with the press, as media interactions concerning official NYPD business are governed by a different set of guidelines (Patrol Guide Procedure 116-51), which encourages accurate information dissemination. Non-official communications with the media are not covered by either procedure.

Following a hearing based solely on affidavits from plaintiffs and NYPD supervisory officers, the district court found that plaintiffs demonstrated irreparable harm and a likelihood of success on their First Amendment challenge to the Procedure, leading to a stipulation that modified the policy. The City contended that the Law Officers Association (LOA) lacked standing due to insufficient evidence of concrete harm from the Procedure. The City argued that alleged denials of permission to speak were not governed by the challenged provision and were unproven, while claims of fear of reprisals were inadequate for standing. 

To establish standing, a plaintiff must show: (1) an invasion of a legally protected interest that is concrete, particularized, and actual or imminent; (2) a causal link between the injury and the challenged activity; and (3) that the injury can be redressed by the court. Allegations of a subjective chill on First Amendment rights are insufficient without objective evidence of specific harm or threats of future harm. 

LOA provided sufficient evidence of deterrence from exercising First Amendment rights. A member, Miranda, stated he was denied permission to speak publicly and that his group had declined nine requests to comment on non-confidential police practices due to NYPD policy. Additionally, he speculated about future requests for comments. This evidence met the standing requirement, as supported by precedent indicating that showing deterrence from protected activities is sufficient for standing.

Plaintiffs have established standing, allowing the court to evaluate the request for a preliminary injunction, which is reviewed for abuse of discretion. To obtain such an injunction, the moving party must show two key elements: (1) irreparable harm will occur without the injunction, and (2) either a likelihood of succeeding on the merits or sufficiently serious questions regarding the merits, with the balance of hardships favoring the moving party. In cases involving governmental actions taken in the public interest, a preliminary injunction requires proof of both irreparable harm and a likelihood of success on the merits.

The district court previously concluded that the plaintiffs would suffer irreparable harm due to requirements that imposed advance notice, permission, and reporting of their speech to their employer, which could lead to self-censorship and infringe on their First Amendment rights. However, after changes in the case's circumstances, the court found that plaintiffs no longer need permission to speak but only to notify the NYPD of their intent and summarize their comments afterward. While this may still cause some reluctance to speak, the court determined that such speculative chill does not constitute real and imminent irreparable harm, thereby differing from the district court's initial findings.

Plaintiffs face challenges in demonstrating the likelihood of success regarding their objections to a redefined procedure that limits government employee speech. When evaluating regulations that restrict such speech, courts apply the balancing test from *Pickering v. Board of Education*, weighing the employee's right to comment on public concerns against the employer's interest in efficient public service. The regulation must also be necessary to protect this efficiency. 

In this case, employees seek the freedom to express their views about the police department, a significant interest acknowledged by the Supreme Court, which values employee insights for public debate. Conversely, the City has a strong interest in being informed about police officers' public statements, essential for managing sensitive police operations and correcting misinformation effectively.

The court finds that the current notice and reporting procedure reasonably balances these interests. Unlike a previous case involving stricter media contact policies, the modified procedure does not require prior approval for employees to speak with the press, thus allowing greater freedom while still facilitating the City’s ability to manage information dissemination.

The court identified critical First Amendment issues regarding a policy requiring superior approval for employee speech, noting that such a requirement could deter dissenting views, lacked a time limit for review, and did not provide objective standards for decision-making. These concerns led the court to find the City’s justifications inadequate for imposing broad prior restraints on speech. However, in the current case, the absence of an approval requirement means the City cannot suppress or delay dissenting speech. The only remaining concern is that the requirement for employees to notify the Department before speaking may discourage individuals with unpopular views. Nonetheless, plaintiffs failed to demonstrate a tangible threat that the notice and reporting requirements alone would chill their speech. Given the insufficient record to support their claims, the court deemed the procedures as potentially justified restrictions on employee activities. The court recognized that the case was litigated based on the original four requirements of the Procedure, suggesting that plaintiffs may not have fully explored the impact of the notice and reporting requirements. Consequently, the court vacated the district court's preliminary injunction against these requirements, allowing plaintiffs the opportunity to pursue a permanent injunction with a more developed record. The order was vacated by Honorable Loretta A. Preska from the United States District Court for the Southern District of New York.