Schoolcraft v. The City Of New York et al

Filing 88

Letter addressed to Judge Robert W. Sweet from William S. J. Fraenkel dated 5/11/12 re: Counsel for the City defendants requests that plaintiff's motion to amend the complaint be denied. ***Accepted as a docket and file by Chambers. (mro) (mro).

05/11/2012 FRI 11=32

FAX [phone]~34

~002/003

THE CITY OF N~w YORK

LAW DEPARTMENT

MICHAEL A. CAIIDOZO

100 C1IlJRCH STRb:b:T
NEW YORK, NY 10001

CClrpuralitm COI4n.re1

WILLIAM S.J. "'RIH:NKEI.
Phune: 212·788·1247
Pax: 212-7Bft-OQ40

b-rnuil: [e-mail]

May 11,2012

Vin FucsimiJe Trnnsmission [phone]
Honorable Robe11 W. Sweet
United Shtle::; District Judge
Southern District of New York
500 Pearl Street
New Yl)l'k, New York 10007
Re: Schoolcraft v. 'fhe City orNew York, et ti1.
Civil Action No. lO-Civ.-600S (RWS)
Law Dept. No. 2010-033074
Denr Judge Sweet:
I am an Assistant Corporation Counsel in the orlice of Michac1 A. Cardozo,
Corporation Counsel of the City of New Y()rk, l.tssigned 10 represent the City of New York. the
New York City Police Department CNYPD"), and individual defendants Deputy Chief Michael
Marino, Assistant Chief Patrol Borough ilrookJyn NOlth Gerald Nelson) Captain Theordorc
Lautcrborn, Lieutenant Joseph Goff, Sergeant Frederick Sawyer, Sc.rgeant Kurt Duncan,
Lieutenant Christopher BroschLU't, and Sergeant Shantel James (collectively the "City
Defendants") in the above-referenced matter. 1 write in response to plaintiffs letter
last
evening.

or

The Ninth Circuit Court of Appeals case of Kurl II. City of Mountlake Terrace,
2012 U.S. App. LRXTS 9311 (91h Cir. March 5, 2012) which plaintiff forwarded to the Court last
evening is inapposite. As an initial matter, the plaintiff in Karl was not a poJice officer but u
civilian employee of a police department. Secolldarily, the Ninth Circuit did not rule on
plaintiff':; job duties but for the purpose of reviewing the summary judgment decision drew all
inferences in plaintiffs favor. As such, the Nillth . Circuit assumed that the plainliff did not have:
a duty to report cormptlon, The Court also noted that as a civilian the plaintiff did not share an
officer'S job duty to testify truthfully. Nor was the plaintiff testifying under Fed.R.Civ.P,
20(b)(6) as a representative of the government employer but testified pursuant to a subpoena.
Drawing on the Karl case from the state or Washington, Plaintiff'in this casc
seems to suggest there is some factual issue as to whether in New York a police officer has a
duty to report corruption. Within the Second Circuit, us Judge Jones of this Court in Matthews v.

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FAX

.2127883934

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City of New York, 2012 U.S. Dist LEXIS 53213 at "'7-8 (S.D,N,Y, Apr. 12, 2012), recently
reemphasized. an officer's act of voici1lg "concerns about illegal policing practices are Ipart-and­
parcel' of [the officer's] ability to "properly exccute his duties." This obligation to report
corruption is not subject to reasonable dispute. Moreover, if Plaintiff believed that reporting
corruption was outside his job duties facts in support of l;uch t;l clain1 should appear in the
proposed amended complaint hut they uo not, Plaintiff offers unsupported assertions that he W~\!:i
not required as a duty of his job as a sworn law enforcement officer to report falsification of
official goverlUllent documents. Such assertions would not :survive a motion under Iqbal. On the
other halld~ dert:ndants have 011ered law and judicially noticeable facts, that police officers huve
a duty to report corruption. Thc Karl case adds nothing to this COUlt's analysis, Nor does the
Anderson case apply. Whether the subject of the speech concerns a brem.:h of the public trust, as
a opposed to a private one, is relevant fat an a analysis under C01lllick v. !\Iuers,461 U.S. 138,
147 (19S3), but it is 110t relevant under Garcetti. Indeed, the possible use of unlawfully obtuined
evidence, us was the case in Qarcetti, would be considered a breach of the public trust.
Nonetheless, the Supreme Court found the speech in Garcotti be unprotected. So also is the
speech in this case a duty of plaintiff's job and therefore unprotected.
Consequently, the City Defendants respectfully request that PluintifT"s motion 10
amend the complaint be denied,

We thank the Court for its attention to this malter.
Respectfully submitted,

tv47~
William S,J. Fraenkel
Assistant Corporation Counsel
Cc;

Via Facsimile Transmission
Jon L, Norinsherg (Fnx 212-406-6890)
225 Broadway, Suite 2700 New York, New York 10007
Cohen & Fitch, LLP (Fltx 212~406 ..2313)

Gerald Cohen

Joshua Fitch

233 Broadway, Suite 1800 New Y(,rk, New York 10279

C']l'egory John Rudomisli (Fax [phone])

Marlin Clearwater & Bell LLP220 East 42nd Street,

nIh

Floor New York, NY 10017

Brian Lee (Fnx 516-352-4952)

Ivane, Devine & Jensen LLP 2001 Marcus Avenue, Suite Nl 00 J luke Success, NY 11042

Bruce M. 8rady (Fax [phone])

Callan, Koster, Brady & Brennen LLP 1 Whitehall ,Street New York, NY 10004

- 2­

05/11/2012 FRI

11e3~

FAX

2127883~34

1;,]003/003

City of New York, 2012 U.S. Dist. LEXIS 53213 at "'7-8 (S.D.N.Y. Apr. 12, 2012), recently
reemphul>ized, ,m officer's act of voicing "concerns about illegal policing practices are 'part-and­
parcel' of Ithe o11icer's] ability to "properly execute his duties." This obligation Lo report
corruption is not suqjcct to reason£tble dispute. Moreover, if Plaintiff believed that reporting
corruption was outside his job duties facts in support of sucb u c1uim should appear in the
proposed amended complaint but they do not. Plaintiff oilers unsupporLed assertions that he was
not required as a duty of his job as It swom Juw enforcement officer to report falsification or
onicia! govemment documents. Such assertions would not survive u motion under Iqbal. On the
other hand, defendants have orf'ered law and judicially noticeable facts, that pi'J1ice officers have
u duty to report corruption. The Karl case adds nothing to tlus Court's analysis, Nor does the
Anderson cu:>e uppJy. Whether the subject of the :;peech concerns a breach of the public trust, as
a opposed to a private one, is relevant for an a analysis under Connick v. Myers, 461 U.S. 138,
147 (1983), but it is not relevant under GarCtltti. Indeed, tile possible usc of unlawlhlly obtained
evidence, as was the case in Garc ctti, would be considered a breach of the public trust.
Nonetheless, the Supreme Cuurt found the speech in Garcctti be unprotected. So also is the
speech in this case a duty of plaintiff's job tlnd therefore unprotected.
Consequently, the City Dclendants respectfully request that Plaintiff's motion
amend the complaint btl denied.

i(l

We thank the Court for its attention to this maUer.
Re~pecLfully

submitted,

/-v4?~-_
WilHam S.J. Fracnkcl
As!)islul,t Corporation Counsel
Cc;

Via Facsimile Transmission
Jon L. Norinsberg (Fax [phone])
225 Broadway. Suite 2700 New York, New York 10007
Cohen & l'itch, LLP (Fax [phone])
Geruld Cohen
Joshua Fitch
233 Broadway, Suite 1800 New York, NcwYork 10279

Gregory J01m Rltdomisli (Fax [phone])

_Martin Clearwater & Bell LLP220 East 42nd Street, 13 lh Floor New York, NY 10017

Urian Lee (Fax [phone])

[vone, Devine & Jellsen LLP 2001 Marcus Avenue, Suite-NlOO Lake Success, NY 11042

13ruce M. Brady (Fax [phone])

Callan, Koster, Brady & Brennen LLP 1 Whitehall .Street New York, NY 10004

-2­

05/11/2012 FRI 11=32

~OOl/003

FAX [phone]

THE CITY OF NEW YORK

LAW DEPARTMENT

H10 CHURCH STREBT

NEW YORK, NY 10007

FACSIMILE TRANSMISSION

TO:

Honorable Robert W. Sweet
United States Di~trict Judge
Southern District of New York
500 l)ellrl Street
New York. New York 10007

FROM:

FAX #:

[phone]

DATE:

Wil1iam S.l. Fraenkel
Phone; [phone]
FAX: [phone]
. [e-mail]

MAY 11,2012

You should receive Th,"ee (3) pagc(s), including this one.
Please contact me if you do not receive all pages.
This facsimilo contains CONFIDENTIAL lNFORMATlON Which lnay also be LEGALLY PRIVILEGED. It is
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forth
the United Slattls Postal Service. Thl\~~X~

Rc: Schoolcraft "V.:. 'Ole City ofNew Yor~, ot aJ.
Civil Action No. 1O~Civ.-6005 (R.WS)
Luw Dept. No. 2010-033074
In advance of tomorrow's argument tlle City defbndants respectfully submit the following letter
in opposition to Plaintiffs letter molion, dated April 25,2012
Copies Via 14'acsimile TramunissioJl To:
Jon L. NOl'insberg (Fux 212-406-(890), 225 Broadway,
10007

Su~t~21;Z~Q,

,~t,~te("J',

New York, New York

Cohen & Fitch, LLP (Fax [phone]), GoruM Cohen, 10shua Fitch, 233 Broadway, Suite
1800, Ncw York, New York 10279
Gregory John Hadomisli (Fux 212-949-7054), Martin Clearwater & Bell LLP, 220 East 42nd
Street, 13 th Floor, New York, NY 10017
Brian Lee (l~'ax 516-352-4952), Ivonc, Devine & Jensen LLP, 2001 Marcus Avenue, Suite N 100,
T,uke Success, NY 11042
.
Bruce M. )J.rady (Fux 212-248-6815), Cullall, Koster, Brady & 13rcllilcn LLP, 1 Whitehall Street
Ntlw York, NY 10004