Schoolcraft v. The City Of New York et al
Filing
85
Letter (Treated as a Motion returnable 5-8) addressed to Judge Robert W. Sweet from Joshua P. Fitch dated 4/25/12 re: Counsel for the plaintiff requests that Your Honor issue and Order permitting plaintiff to amend the complaint. Document filed by Adrian Schoolcraft. ***Accepted as a docket and file by Chambers. (mro) Modified on 7/13/2012 (mro). (mro).
COHEN & FITCH LLP
233 BROADWAY, Surru 1800
NEW YORK, NY 10279
TEL: 212.374.9115
212.4062313
FAX:
BY FACSIMILE
212-805-7925
Honorable Robert W. Sweet
United States District Judge
Southern District of New York
500 Pearl Street
New York, New York 10007
Re:
SchoolcraO v. City ofNew York, et al.
10 CV6005 (RWS)
Your Honor:
1 am co-counsel for plaintiff in the above-referenced matter. I 1hTi.te now to respectfully
request that Your Honor grant plaintiff leave to amend the complaint to add a First Amendment
retaliation claim lmder 42 U.S.C. § 1983 based on the discovery that has been produced thus far.
Additionally, it is also respectfully requested that plaintiff be permitted to substitute Lieutenant
William Gough for Lieutenant Joseph Goff who was incorrectly named in the original complaint.
The request to substitute Lt. Gough as a defendant is made with the consent of all parties and the
request regarding the First Amendment claim is made with the consent of all parties except the
City defendants. No prior requests to amend have been made,
Since the time of filing the first amended complaint in this action. the parties have
conducted substantial document discovery. Specifically, the parties have exchanged over three
thousand (3,000) documents as well as thousands of hours of audio recordings. Amongst the
documents exchanged by the City defendants was the UF 49 (Unusual Occurrence Report) from·
October 31, 2009, which indicated that a Lt William Gough was present during plaiqtiffs home
invasion whose name bote a phonetic resemblance to the currently named defendant Lt. Joseph
Goff. After verifying this information with the plaintiff, it was confirmed that because of the
similarity in names Lt. Joseph Goff had erroneously been named instead of the correct Lt.
William Gough. Accordingly, the plaintiff respectfully requests leave to amend the complaint to
correct this error and add the appropriate defendant.
Additionally, the City defendants have also produced the documents from the
investigation conducted by the Quality Assurance Division (QAD) of the New York City Police
Department, which had performed an investigation into the allegations made by plaintiff Adrian
Schoolcraft while still an active duty police officer at the 81 st Precinct. Specifically, prior to the
events of October 31 ~ 2009, Adrian Schoolcraft had made numerous complaints to supervisory
personnel within the department and to outside investigative agencies regarding the enforcement
and establishment of an arrest and summons quota. Additionally~ he also made specific
allegations that commanding officers had manipulated crime statistics and civilian complaints so
as to avoid classification as index crimes. I These allegations included, but were not limited to,
the failure to take reports of civilian complaints, destmction of civilian complaints, downgrading
cQmplaints that would have been categorized as index crimes to lesser offenses and discouraging
civilians fl'om making or pursuing criminal complaints,
Plaintiff believed, and still does, that this under-reporting was occurring in order to avoid
the statistical categorization of these complaints as "major crimes" for purposes of reporting
crime statistics to the public - i.e, to make it appear to the public at large that a certain manner of
policing was affectively reducing crime when 1n fact the numbers being provided to the public
were being falsifi.ed. Further, these allegations that plaintiff had made were eventually
snbstantiated by the QAD investigative findings, which found that civman complaints were in
fact being falsified by the NYPD. As such, following the disclosure of the QAD findings, the
merit and validity of plaintiff's First Amendment retaliation claim became clear - namely, that
the events of October 31, 2009 and the subsequent campaign of harassment was done directly in
retaliation against plaintiff because he had exercised his First A.mendment right to speak out
regarding this breach of the public trust and fraud on the public at large. Accordingly, plaintiff
now makes the instant request to add a First Amendment Claim to the complaint.
The Plai"tif! Has Clear Grounds to Assert a First Amendmem Retaliation Claim Based on the
QAD Findings
Under the law of this Circuit, a First Amendment retaliation claim is widely recognized
when an individual suffers a constitutional injury in retaliation for exercising his rights under the
First Amendment. See Skehan v. Village of Mamaroneck, 465 F.3d 96, 107 (2d Cir.
2006)(""[T]he First Amendment nonetheless prohibits it [generally, subject to certain defenses,]
from punishing its employees in retaliation for the content of their speech on. matters of public
importance. "} In order to establish a First Amendment retaliation claim the plaintiff must show
he engaged in protected speech and that the adverse employment action that resulted was
motivated by its utterance. See id. ("In order to establish a First Amendment retaliation claim,
plaintiffS must prove that: (1) they engaged in constitutionally protected speech because they
spoke as citizens on a matter of public concern; (2) they suffered an adverse employment action;
and (3) the speech was a 'motivating factor' in the adverse employment decision."). Further,
"adverse employment action" is not strictly construed under the Fitst Amendment and only
requires that the action taken be sufficient to discourage potential speakers from exercising
similar rights in the future. See Nixon v. Blumenthal, 409 Fed,Appx. 39.1) *1 (2d Cir. 201O)("1n
the First Amendment context, plaintiffs need not demonstrate a material change in employment
terms or conditions ... rather, plaintiffs need only show that the retaliatory conduct in question
'would deter a similar1y situated individual of ordinary flmmess frol11 exercising his or her
constitutional rights. "'). Additionally~ in order for a public employee namely, a police officer
- to establish entitlement to First Amendment protection, he or she must show that they engaged
I Index crimes consist of the seven major crime dass.ifications: Murder, Rape, Robbery, Burglary, Felony Assault,
Grand Larceny and Grand Larceny Auto.
in speech as a <'citizen" regarding matters of public concern. See Ruotolo v. City of New York,
514 F.3d 184, 188 (2d Cir. 2008)("Whether public employee speech is protected from retaliation
under the First Amendment entails two inquiries: (1) "'whether the employee spoke as a citizen
on a matter of public concern" and, if so, (2) '"whether the relevant government entity had an
adequate justification for treating the employee differently from any other member of the general
public. "').
In the present case, plaintiff can clearly satisfY every element of this claim. Plaintiff
Adrian Schoolcraft spent years documenting corruption within the New York City Police
Department. Specifically, he recorded superior officers instructing subordinates to make arrests
and issue summonses pursuant to an internally established quota and in many instances either
explicitly or implicitly instructing officers to disregard probable or reasonable cause in order to
meet these requirements.
Additionally, and perhaps even more importantly, plaintiff
documented repeated instances of widespread fraud regarding civilian complaints within 81 st
Precinct namely, officers' failure to take civilian complaint reports, their discouragement of
c.ivilians who desired to make reports and their misclassification of crimes contained in the
rcpOlts. Further, in an attempt to expose this corruption clearly involving matters of public
concern, plaintiff spoke to supervisors, made formal reports that he attempted to transmit to
Police Department hierarchy and made written complaints to investigative units such as the
Intemal Affairs Department and Quality Assurance Division of the NYPD. As a result of this
speech, NYPD officials modified the conditions of his employment and eventually entered his
home and had him involuntarily committed to a psychiatric ward at Jamaica Hospital for six (6)
days. Thereafter, defendants continued to retaliate against him for his speech regarding the
depaltmental corruption by traveling hundreds of miles to his home in upstate New York in a
continuing campaign of retaliation and intimidation. Accordingly. plaintiff can unquestionably
establish the requisite elements for pleading and proving a First Amendment retaUation claim in
this case.
Garcetti is Entirely Inapplicable to the Speech Alleged in This Matter
In response to plaintiffs request for consent to amend the complaint in order to add this
claim, the City defendants have predictably relied on Garcetti v. Ceballos, 547 U.S. 410 (2006)
in opposing plaintiff's proposed amendment on the grounds of futility. This position, however,
ignores the underlying basis of that holding - namely, that Firs! Amendment protection is only
lost when the speech is required as a function of the employee's job. See id. at 421 ("We hold
that when public employees make statements pursuant to their official duties, the employees are
not speaking as citizens for First Amendment purposes~ and the Constitution does not insulate
their communications from employer discipline.~')(em.phasis added). Conversely, if the speech is
not required by the employee's job duties, it is protected, and this limitation of Garcetti has been
widely recognized in this Circuit. See Sassi v. Lou-Gould, 2007 WL 635579, '*'3 (S.D.N.Y.
2007)(Unlike the plaintiff is Garcetti, whose job it was to write the communications which he
claimed constituted protected speech, Chief Sassi had no such duty to vvrite public letters to the
City Coun.cil "as a resident taxpayer." Chief Sassi's letters, which harshlycriticized the City
Council for its funding of the police department, were very similar to the letter in
Pickering.)(emphasis added). In fact Your Honor has even recognized this distinction in cases
involving facts similar to the instant case. See MeAvey v. Orange-Ulster Boces, 2009 WL
2744745, "'5 (S.D.N.Y. 2009)(RSW)«'McAvey's official job duties cannot be said to include
'scrutinize[ing] her supervisors for fraud-essentially acting as a supervisor of her supervisors-let
alone report[ing] them to external investigators."'). Further, the mere fact that the speech is
related to an individual's job does not lift the Llmbrella of First .Amendment protection. See
Jackson v. Jimino, 506 F.Supp.2d 105, 109 (N.D.N.Y. 2007)('''If we were to adopt Defendants'
argument, we would inextricably have find that Garcetti dictates a bright-Hne rule-all all or
nothing determination-on an employee's speech even if it tangentially concerns the official's
employment. We fmd that Garcettj does not stand for that proposition. "')(emphasis added).
In the present matter, plaintiff's speech tmdoubtedly involved matters of public concern
namdy, the falsification of civilian complaints and the widespread institution of an arrest and
summons quota, which implicitly and explicitly instructed officers to disregard probable cause.
See Skehan 465 F .3d at 106 (,,[D]efendants do not seriously contest that plaintiffs have satisfied
the tlrst two elements of their First Amendment case, nor could they. Plaintiffs' speech plaInly
concerned issues of public concern: misfeasance within the police department and allegations of
an ongoing cover-up and an attempt to silence those who spoke out against it.")(emphasis
added). As previously stated, plaintiffs speech concerned a system that required andlor
inf1,uenced officers to disregard the law and violate individua.ls rights in order to meet
departmental quota requirements.
Moreover) plaintiff was speaking out regarding the
widespread manipulation, tampering and falsification of civilian complaints being made by the
public at large. Additionally, it cannot be argued with any level of credibility that addressing
these matters was part of his job duties, and as such, he is entitled him to First Amendment
protection. See Jacklerv. Bym~, 658 F.3d 225,241- 42 (2d Cir. 2011):
[1]t is clear that the First Amendment protects the rights of a citizen to refuse to
retract a report to the police that he believes is true, to refuse to make a statement
that he believes is false. and to refuse to engage in Ulllawful conduct by filing a
false report with the police. We conclude that Jackler's refusal to comply with
orders to retract his truthful Report and file one that was false has a clear civilian
analogue and that JackIer was not simply doing his job in refusing to obey those
orders from the department's top administrative officers and the chief of police.
Id. (emphasis added). Final1y, the nature of plaintiffs speech not only was addressing
matters of public concern) but acts that literally constituted afraud on the public - namely, that
citizens were being led to believe their complaints were actually being taken and being reported
accw·~tely. Und~r thes.e circumstances, it i~ ~lear t1;-at plaintiffs allegations are abundantly
sufficlent to sustain a FIrst Amendment retahation clalm. See Anderson v. State of New Yor~
Office of Court Admin. of Unified, 6]4 P.supp.2d 404, 428 (S.D.N.¥. 2009):
This case is patently distinguishable from Garcetti. Whereas the prosecutor i.n
Garcetti spoke out about a single case pending in his office, Anderson spoke out
about systemic problems at the DDe, thereby making her speech protected.
Where a public employee's speech concerns 3. government agency's breach ofthe
p~blic trust. as it does here, the speech relates to more than a mere personal
gnevance and therefore falls outside Garcetti's restrictions.
(Id.)(emphasis).
Accordingly, since leave to amend pleadings is freely granted, and defendants cannot
possibly sustain their burden of proving the futility of adding this claim, plaintiff respectfully
requests that Your Honor issue an Order pennitting plaintiff to amend the Complaint
accordingly_
Thank you for your consideration of this request.
Very truly yours,
-.::===~:----
Cc:
VIA FAX
Suxanna PubHcker, Esq.
Assistant Corporation Counsel
The City ofNew York Law Department
100 Church Street
New York, New York 10007
Gregory 101m Radomisli
Martin Clearwater & Bell LLP
220 East 42nd Street, 13th Floor
New York, NY 10017
Brian Lee
Ivane, Devine & Jensen LLP
2001 Marcus Avenue, Suite NJOO
Lake Success, NY 11042
Bruce M. Brady
Callan, Koster, Brady & Brennen LLP
1 \Vhitehall Street
New Y ork~ NY 10004
COHEN & FITCH LLP
233 BROADWAY, SUITE, 1800
NEW YORK, NY t 0279
TEL: 212.374.91 15
212.406.2313
FAX:
FAX FORM
DATE: April 25, 2012
TO:
Honorable Robert W. Sweet, United States District Judge
FIRM OR COMPANY:
Cc:
Southern District of New York
Suzann.a PubHcker, Esq- (212-788-9776)
Assistant Corporation Counsel
Gregory John Radomisli (212-949-7054)
Martin Clearwater & Bell LLP
th
220 East 42nd Street> 13 Floor:
New York. NY 10017
Brian Lee (516-352-4952)
Ivane> Devine & Jensen LLP
2001 Marcus Avenue, Suite NlOO
Lake Success, NY 11042
Bruce M. Brady (212-248-6815)
Callan, Koster, Brady & Brennen LLP
1 Whitehall Street
New York, NY 10004
FROM: Cohen & Fitch LLP
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