Opinion
01 CV 5661 (JG).
September 17, 2004
JANE BILUS GOULD, Lovett Gould, Esqs., White Plains, New York, Attorneys for Plaintiff.
MICHAEL A. CARDOZO, Corporation Counsel of the City of New York, New York, New York, By: Eamonn F. Foley, Assistant Corporation Counsel, Attorney for Defendant.
MEMORANDUM AND ORDER
Plaintiff Robert Charles Reuland, a former Assistant District Attorney in Kings County, New York, brought this civil rights action pursuant to 42 U.S.C. § 1983 against defendant Charles J. Hynes, the Kings County District Attorney, seeking damages and equitable relief. Reuland claims that Hynes demoted him and later discharged him in violation of his First Amendment rights. After I denied Hynes's motion for summary judgment, Reuland v. Hynes, No. 01 CV 5661, 2004 U.S. Dist. LEXIS 11061 (E.D.N.Y. June 17, 2004), the case proceeded to trial and, at the close of the evidence, the jury rendered special verdicts.
The instant motions have been brought pursuant to Federal Rule of Civil Procedure 50(b). Both sides seek the entry of judgment in their favor based on the jury's findings of fact. Specifically, Reuland seeks a judgment against Hynes for $30,000 for Hynes's having illegally demoted him. Hynes seeks a judgment in his favor on all claims. For the reasons set forth below, Reuland's motion is granted and Hynes's is denied.
BACKGROUND
The facts of the case are set forth in my decision denying Hynes's motion for summary judgment. Id. at *2-9. Familiarity with that opinion is assumed. I set forth here only those facts relevant to the motions at hand.
At the close of the evidence at trial, the jury answered a series of questions regarding liability. The first question, asked over Reuland's objection, was, "Has plaintiff Robert Charles Reuland proved by a preponderance of the evidence that one of his motivations was to address a matter of public concern?" The jury answered "no" as to each of the three instances of speech on which Reuland based his claim: Hollowpoint, Reuland's statement to New York magazine, and Reuland's March 9, 2001 statement to Hynes in Hynes's office. The jury was next asked, "Has Reuland proved by a preponderance of the evidence that his speech was a substantial or motivating factor in . . . Hynes's decision to demote him out of the Homicide Bureau . . .?" As to Hollowpoint and the March 9, 2001 statement, the jury answered "no." However, as to the statement to New York magazine — that "Brooklyn is the best place to be a homicide prosecutor" because" [w]e've got more dead bodies per square inch than anyplace else" (Pl. Ex. 7) — it answered "yes." The jury further found that Hynes had not carried his burden of proving that he would have demoted Reuland even in the absence of this statement.
Though Reuland's attorney objected at trial to submitting the question of Reuland's motivation to the jury, at oral argument on the summary judgment motion she proposed just that. (June 7, 2004 Tr. at 22, 24.)
The foregoing findings pertained only to Reuland's demotion in March 2001. As for his termination four months later, the jury found that none of the instances of Reuland's speech was the reason for Hynes's decision. The jury apparently accepted Hynes's assertion that Reuland was fired for poor performance on the job.
After hearing supplemental summations on damages, the jury returned an award of $30,000 in compensatory damages for the wrongful demotion. It declined to award punitive damages.
The issue raised by the instant motions is whether the jury's finding as to Reuland's motivation in speaking to New York magazine removes that statement from the protections of the First Amendment and thus defeats his wrongful demotion claim. Apparently accepting Hynes's claim that Reuland sought only to increase his book's sales, the jury found that none of Reuland's motivations in making the "more dead bodies per square inch" statement was to address a matter of public concern. I need not discuss the other instances of speech — Hollowpoint or the March 9, 2001 statement in Hynes's office — as the jury found that neither was a factor in Hynes's decision to demote Reuland.
DISCUSSION
A. First Amendment Retaliation: Motivation and Public ConcernIn denying Hynes's motion for summary judgment, I observed that the subject matter of Reuland's statement to New York magazine — the murder rate in Brooklyn — was a matter of public concern. Id. at *28. However, because Reuland's motivation in making that statement was a disputed question of fact, I stopped short of holding as a matter of law that the statement addressed a matter of public concern under Pickering v. Board of Education, 391 U.S. 563 (1968), and Connick v. Myers, 461 U.S. 138 (1983), as those cases have been construed by the Second Circuit. The disputed factual issue has been determined by the jury and I must now determine whether Reuland's motivation in making this statement, which was not to address a matter of public concern, warrants a judgment in Hynes's favor.
Another impediment to ruling in Reuland's favor on that issue was procedural. Whereas Hynes had sought summary judgment on the ground, inter alia, that Reuland's statements did not address matters of public concern, Reuland had not cross-moved for summary judgment on that issue.
"Whether an employee's speech addresses a matter of public concern is a question of law for the court to decide, taking into account the content, form, and context of a given statement as revealed by the whole record." Lewis v. Cohen, 165 F.3d 154, 163 (2d Cir. 1999). In making this determination, I must focus on motive and "attempt to determine whether the speech was calculated to redress personal grievances or whether it had a broader public purpose." Id. at 163-64. The Second Circuit has held that the mere fact that a government employee takes a personal interest in the subject matter of the speech at issue does not remove it from the protection of the First Amendment, and that, as "mixed motivations are involved in most actions we perform every day[,] we will not hold plaintiffs to herculean standards of purity of thought and speech." Johnson v. Ganim, 342 F.3d 105, 114 (2d Cir. 2003) (quotation marks and alterations omitted). Here, however, the jury found that none of Reuland's motivations in making the statement to New York magazine was to address a matter of public concern.
My conclusion — that the jury's finding as to Reuland's motivation does not defeat Reuland's claim — rests on two independent grounds. First, to the extent the Second Circuit has focused on the motive of the speaker, it has done so in the context of deciding whether speech addressing — at least in part — workplace grievances is protected by the First Amendment. Second, the speaker's motivation goes to how much weight the speech is given in the Pickering balance; it does not operate to defeat a First Amendment claim at the threshold question of whether the speech addresses a matter of public concern. I discuss each ground in turn.
1. Motivation and Matters of Public Concern
I begin with Connick, the holding of which creates a distinction between speech made as an employee and speech made as a citizen. Connick held "that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision." 461 U.S. at 147 (emphasis added). There, Connick had circulated a questionnaire within the Office of the District Attorney for Orleans Parish, and was fired as a result. The Court said as follows about the questionnaire:
In this case, with but one exception, the questions posed by Myers to her coworkers do not fall under the rubric of matters of "public concern." We view the questions pertaining to the confidence and trust that Myers' coworkers possess in various supervisors, the level of office morale, and the need for a grievance committee as mere extensions of Myers' dispute over her transfer to another section of the criminal court. Unlike the dissent, we do not believe these questions are of public import in evaluating the performance of the District Attorney as an elected official. Myers did not seek to inform the public that the District Attorney's office was not discharging its governmental responsibilities in the investigation and prosecution of criminal cases. Nor did Myers seek to bring to light actual or potential wrongdoing or breach of public trust on the part of Connick and others. Indeed, the questionnaire, if released to the public, would convey no information at all other than the fact that a single employee is upset with the status quo. While discipline and morale in the workplace are related to an agency's efficient performance of its duties, the focus of Myers' questions is not to evaluate the performance of the office but rather to gather ammunition for another round of controversy with her superiors. These questions reflect one employee's dissatisfaction with a transfer and an attempt to turn that displeasure into a cause celèbre.Id. at 148 (emphasis added, citation omitted).
Despite its conclusions regarding Myers's intent in circulating the questionnaire, the Court held that one of the questions contained therein — which asked whether Assistant District Attorneys ever felt pressured to work in political campaigns on behalf of office-supported candidates — did address a matter of public concern. Given our nation's "demonstrated interest . . . that government service should depend upon meritorious performance rather than political service," the Court held that "the issue of whether assistant district attorneys are pressured to work in political campaigns is a matter of interest to the community upon which it is essential that public employees be able to speak out freely without fear of retaliatory dismissal." Id. at 149. To emphasize, the Court held that instance of speech to be protected despite its conclusion that Connick sought only to air personal, internal grievances. After holding that instance of speech to be a matter of public concern, the Court proceeded to apply the Pickering balancing test. Id.
These portions of Connick support my conclusion that Reuland's statement to New York magazine was protected speech notwithstanding his motivation in making it. Connick is instructive because, despite the fact that Connick's motivation in circulating the questionnaire was "to gather ammunition for another round of controversy with her superiors," id. at 148, a question within that questionnaire was still held to be a matter of public concern, id. at 149.
The Third Circuit agrees with this reading. In Azzaro v. County of Allegheny, it wrote:
Connick indicates that the speaker's motive, while often a relevant part of the context of the speech, is not dispositive in determining whether a particular statement relates to a matter of public concern. Myers' motive for devising and distributing her questionnaire was to defeat the proposed transfer. Despite this same motive underlying all of her questions, the Court found that some of them related to matters of public concern and some did not. If motive were dispositive, the inquiry could only have resulted in finding either that all of Myers' speech was public concern speech or that none of it was.110 F.3d 968, 978 (3d Cir. 1997) (en banc).
Other circuits agree that motive is just one factor to be considered, and is not necessarily controlling, in assessing whether an employee's speech addresses a matter of public concern. E.g., Metzger v. DaRosa, 367 F.3d 699, 702 (7th Cir. 2004); Taylor v. Keith, 338 F.3d 639, 645 (6th Cir. 2003); Morris v. Crow, 117 F.3d 449, 457 (11th Cir. 1997); see also O'Connor v. Steeves, 994 F.2d 905, 913-14 (1st Cir. 1993) ("Where a public employee speaks out on a topic which is clearly a legitimate matter of inherent concern to the electorate, the court may eschew further inquiry into the employee's motives as revealed by the `form and context' of the expression."). Furthermore, at least one district court in this circuit has followed the Third Circuit. See Locurto v. Giuliani, 269 F. Supp. 2d 368, 387 (S.D.N.Y. 2003) ("An individual's personal motives for speaking do not dispositively determine whether that individual's speech addresses a matter of public concern. Cf. Lewis v. Cohen, 165 F.3d 154, 163-64 (2d Cir. 1999). . . . As a number of circuit courts have opined, a contrary rule focused on the speaker's subjective motivation would be in direct conflict with the Court's holding in Connick.").
The Second Circuit's caselaw has tracked Connick's distinction between a citizen commenting on matters of public concern and an employee with a personal axe to grind. In Lewis v. Cohen, after concluding that the plaintiff's speech was motivated by a public concern, the court wrote, "Admittedly, speech on a purely private matter, such as an employee's dissatisfaction with the conditions of his employment, does not pertain to a matter of public concern. . . . Connick precludes First Amendment protection for public employees when they speak `upon matters only of personal interest.'" 165 F.3d 154, 164 (2d Cir. 1999) (quoting Connick, 461 U.S. at 147).
The court's example of "speech on a purely private matter" — an employee's dissatisfaction with the conditions of his employment (i.e., the facts in Connick) — contrasts sharply with the facts in this case. Though the jury found that Reuland's speech was motivated by personal interest, that interest was the promotion of Reuland's novel, not dissatisfaction with the conditions of his employment. To the contrary, Reuland was expressing how much he enjoyed prosecuting homicides in Brooklyn. Nor was Reuland's statement to New York magazine made in the context of an office dispute; his disputes with Hynes arose only after the statement to the magazine. Finally, Reuland was not speaking as an employee, at least not in the sense that the plaintiffs in the cases described above spoke as employees.
Blum v. Schlegel, 18 F.3d 1005 (2d Cir. 1994), another case on which Hynes relies, further supports the citizen-employee distinction. There, the court held that because "[v]irtually every citizen has a personal interest in matters of public concern," "[t]he determinative question is whether that interest arises from the speaker's status as a public citizen or from the speaker's status as a public employee." Id. at 1012. Blum alleged adverse employment actions based on speech advocating the legalization of marijuana, criticizing national drug control policy, and debating civil disobedience. Id. The district court had found that, given Blum's admitted personal interest in the legalization of marijuana, it was likely that he "simply was airing his own feelings about drugs and that his motivation for [the speech] was personal." Id. Nevertheless, the Second Circuit held that the speech was protected: "Had there been evidence that Blum was facing termination for personal consumption of marijuana or evidence that Blum was trying to evade or discredit a drug-testing program, such evidence might have supported the inference that Blum's speech was motivated by his personal interests as a public employee." Id. (emphasis added).
Ezekwo v. NYC Health Hosps. Corp., 940 F.2d 775 (2d Cir. 1991), also relied on by Hynes, is not to the contrary. There, the court held that the plaintiff's speech was unprotected where
[h]er complaints were personal in nature and generally related to her own situation within the [Harlem Hospital Center] residency program. Our review of her prolific writings convinces us that Ezekwo was not on a mission to protect the public welfare. Rather, her primary aim was to protect her own and individual development as a doctor.Id. at 781 (emphasis added); see also White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1059 (2d Cir. 1993) ("Even as to an interest that could arguably be viewed as a matter of public concern, if the employee has raised the issue solely in order to further his own employment interest, his First Amendment right to comment on that issue is entitled to little weight in the balancing analysis." (emphasis added)); id. at 1060 ("Although [plaintiff]'s First Amendment interest in filing his short-lived personnel complaint would be weak if, as the trial record strongly suggests, he took that action solely to obtain additional towing referrals, the trial court did not err in ruling that the personnel complaint did at least minimally touch upon a matter of public concern." (emphasis added)).
Reuland's speech, in contrast, was not motivated by his personal interests as a public employee, and Hynes has never argued as much. Rather, Hynes has argued throughout this litigation that Reuland made the statement to New York magazine as a novelist, to promote Hollowpoint. That Reuland's employment as an Assistant District Attorney was relevant to the subject matter of the novel, would increase sales of the novel, or was a topic of conversation during the interview, is qualitatively different than a situation, like Connick, where an embittered public employee is, to borrow Judge Posner's phrase, "grousing about a raise," Eberhardt v. O'Malley, 17 F.3d 1023, 1027 (7th Cir. 1994).
The New York article in which the statement appeared featured ten New York City lawyers, one of whom was Reuland. Each of the ten interviews was introduced with a different title, often depending on what field of law the interviewee practiced. So, for instance, one interview was titled, "The Public Defender," and another (not Reuland's), "The Prosecutor." (Pl. Ex. 7.) In arguing for summary judgment, Hynes relied heavily on the title of Reuland's interview, "The Novelist," in arguing that Reuland was not seeking to inform the public of a matter of public concern. Though I mention it only in passing, the title lends further support to my conclusion that Reuland did not speak as a public employee, but rather as a citizen and a writer.
The case might be different if Reuland had made the statement to New York magazine while he was still in the Red Zone, in the hopes of securing a position in the more prestigious Homicide Bureau; or had he been recently demoted and seeking to lash out at his employer for that slight. These hypothetical fact patterns would be governed by Connick's (and Lewis's and Blum's) mandate that an employee's speech on matters of purely personal interest are unprotected. 461 U.S. at 147. Here, however, Reuland's personal motivation was to promote Hollowpoint; Hynes has not even alleged, much less presented evidence to suggest, that Reuland made the statement in the context of his public employment to, for example, complain about his working conditions or avoid termination. Indeed, Reuland had no reason to complain about his employment, as, just before making the statement to New York magazine, he had been promoted to the Homicide Bureau, a position he had eagerly sought.
My conclusion — that Reuland's statement to New York magazine remains protected despite his motivation in making it — finds further support in United States v. National Treasury Employees Union, 513 U.S. 454 (1995) (" NTEU"), where the Supreme Court addressed the issue of public employees' speech unrelated to their employment. Hynes argues, rightly, that NTEU is distinguishable in that here, a homicide prosecutor was discussing the murder rate in Brooklyn, while the government-employee plaintiffs in NTEU engaged in speech that had "nothing to do with their jobs," id. at 465, such as an aerospace engineer lecturing on black history and a microbiologist reviewing dance performances, id. at 461-62. However, while NTEU may not be on all fours with the case at bar, it is still very instructive.
In NTEU, the Supreme Court struck down a federal law prohibiting federal employees from accepting any compensation for making speeches or writing articles, "even when neither the subject of the speech or article nor the person or group paying for it has any connection with the employee's official duties." Id. at 457. The Court emphasized this disconnect:
With few exceptions, the content of respondents' messages has nothing to do with their jobs and does not even arguably have any adverse impact on the efficiency of the offices in which they work. They do not address audiences composed of co-workers or supervisors; instead, they write or speak for segments of the general public. Neither the character of the authors, the subject matter of their expression, the effect of the content of their expression on their official duties, nor the kind of audiences they address has any relevance to their employment.Id. at 465. The Court found that the plaintiffs' speeches and articles addressed matters of public concern as they "were addressed to a public audience, were made outside the workplace, and involved content largely unrelated to their government employment." Id. at 466.
Again, I am mindful of the fact that Reuland's statement to New York magazine did indeed relate to his government employment. For this reason, I do not purport to follow NTEU. However, many of the factors cited by the Court cut in Reuland's favor: Hynes has never alleged or presented evidence to show that Reuland's statement to New York magazine had an adverse impact on the efficiency of the office; Reuland did not address an audience of coworkers or supervisors, but rather a public audience; and, though the interview took place in Reuland's office, the statement itself was published in New York magazine — outside the workplace.
In his Post Trial Memorandum of Law, Hynes halfheartedly argues, in a footnote on the last page of the brief, that, in a Pickering balance, Reuland's statement is "entitled to minimal weight as against the defendant's concerns about plaintiff's probity." (Def. Post Trial Mem. Law at 8 n. 6.) This argument relates to Hynes's testimony at trial that he believed that Reuland had lied about his motives in seeking a promotion to the Homicide Bureau, and that Reuland had only sought that promotion to promote Hollowpoint. This argument — that Hynes demoted Reuland because he believed that Reuland had lied to him — was necessarily rejected by the jury, as it found that the statement to New York magazine was a substantial or motivating factor in the demotion decision and that Hynes would not have demoted Reuland but for that statement.
The key similarity between this case and NTEU is motivation, and specifically financial motivation. The law the Court struck down in NTEU did not prohibit a government aerospace engineer from lecturing on black history, or a microbiologist from reviewing dance performances. Rather, the law unconstitutionally prohibited those employees from receiving honoraria — i.e., payments or things of value — for that speech. Therefore, the NTEU Court had no need to address the plaintiffs' motivation for making the speech; it was clear from the very nature of the suit. The NTEU plaintiffs advanced a right to speak for payment. Had their motivation been simply to address matters of public concern, they could have done so for free without triggering the prohibition.
Here, the jury rejected Reuland's argument that he made the speech to address a matter of public concern. At trial (and summary judgment), Hynes argued, based on the evidence presented, that Reuland made the statement to New York magazine to promote Hollowpoint, i.e., for financial gain. NTEU teaches that such motivation does not necessarily take speech outside the protections of the First Amendment. I say "necessarily" because the role a speaker's motivation plays in the First Amendment inquiry turns on the particular facts of the case. For instance, in a case where an employee criticizes his or her employer's policies solely to force a raise in salary (or to avoid a reduction), Blum, Lewis, Ezekwo, and similar cases would be important to the court's analysis of motivation.
This is not such a case. Here, Reuland's speech occurred in a magazine with a large, public audience, published outside his workplace. He did not criticize Hynes or any other supervisor in the office. He was praising his job, not complaining about it. Nor was he seeking to effect a positive change in his employment status or avoid a negative one. Furthermore, the subject matter of his statement touched on the homicide rate in Brooklyn, clearly a matter of public concern. See Morris v. Lindau, 196 F.3d 102, 111 (2d Cir. 1999) ("The comments . . ., which included speech on crime rates, police staffing, equipment shortages and related budgetary matters quite plainly involve matters of public concern."). Therefore, for all of the above reasons, I conclude that, despite the jury's finding that Reuland did not make the statement to New York magazine to address a matter of public concern, that statement nonetheless addresses a matter of public concern.
In NTEU, the Court did not examine the subject matter of the speech in holding that it was a matter of public concern. The Court found that the plaintiffs' speeches and articles addressed a matter of public concern as they were addressed to a public audience, were made outside the workplace, and involved content largely unrelated to [the employees'] government employment." 513 U.S. at 466. Here, as discussed above, the subject matter of Reuland's speech clearly addresses a matter of public concern, so I need not decide whether NTEU's standard for determining public concern applies here.
2. Motivation and the Pickering Balance
To the extent that motivation is relevant in removing speech that otherwise addresses a matter of public concern from the protections of the First Amendment, it does so not at the threshold question of whether the speech addresses a matter of public concern, but rather in the Pickering balance. Put another way, a purely private and personal motivation to air an employment grievance, even if that grievance addresses a matter of public concern, might reduce the value of the speech to such an extent that it is outweighed by even a relatively slight interest on the part of the public employer.
In Lewis, the Second Circuit rightly recognized that the extent to which speech touches on a matter of public concern is a sliding scale and affects what weight the speech is given in the Pickering balance. In noting the importance of the manner, time, and place of the speech in determining whether it is protected, the court wrote, "For example, the Pickering balance is more likely to favor the government when an employee directly confronts his supervisor with objectionable language than when an employee engages in equivalent speech on his own time and not in front of co-workers." 165 F.3d 154, 162 (2d Cir. 1999). The content of the speech also affects the Pickering balance: "The more the employee's speech touches on matters of significant public concern, the greater the level of disruption to the government that must be shown." Id.
As to motivation specifically, the court was even more explicit in White Plains Towing Corp. v. Patterson, 991 F.2d 1049 (2d Cir. 1993). There the court held:
Even as to an issue that could arguably be viewed as a matter of public concern, if the employee has raised the issue solely in order to further his own employment interest, his First Amendment right to comment on that issue is entitled to little weight in the balancing analysis.Id. at 1059 (emphasis added). White Plains Towing Corp. does not stand for the proposition that where an employee raises an issue solely to further his own employment interest, a court need not reach the Pickering balance. For these reasons, and, independently, for those stated in Part A.1, I now proceed to the balancing.
At oral argument on the summary judgment motion, Hynes's attorney argued vigorously that, despite the instructions of Gorman-Bakos v. Cornell Cooperative Extension, 252 F.3d 545, 557-58 (2d Cir. 2001) (holding that, where "both sides' arguments rest heavily on the proper characterization of plaintiff's speech and defendants' motives," the court should wait to come to its legal conclusions until after the factfinder has resolved the factual disputes), I should not submit the question of Reuland's motivation to the jury. At trial, it was Reuland who objected to the submission of those questions to the jury. But see supra note 1. Were the factual disputes mine to decide, I would find that, based on the record as a whole and the context in which the statements were made, Reuland's statement to New York magazine was made with mixed motives. One the one hand, I believe that the context of the interview shows that Reuland sought to promote his new novel, Hollowpoint. On the other hand, I credit Reuland's testimony that he cares about the work of prosecutors and wants to help lower the murder rate in Brooklyn. Of course, both for the reasons stated above and those in my opinion denying summary judgment, see Reuland, 2004 U.S. Dist. LEXIS 11061, at *22-30, this finding would not change the outcome here.
B. The Jeffries Factors
That Reuland's speech addresses a matter of public concern does not end the inquiry.
A government employer may take an adverse employment action against a public employee for speech on matters of public concern if: (1) the employer's prediction of the disruption that such speech will cause is reasonable; (2) the potential for disruption outweighs the value of the speech; and (3) the employer took the adverse employment action not in retaliation for the employee's speech, but because of the potential for disruption.Johnson v. Ganim, 342 F.3d 105, 114 (2d Cir. 2003) (citing Jeffries v. Harleston, 52 F.3d 9, 13 (2d Cir. 1995)). The second Jeffries factor is the Pickering balance. Id.
As mentioned above, Hynes's only argument on the balancing test comes in a footnote on the last page of his Post Trial Memorandum of Law. He contends that Reuland's statement to New York magazine "would be entitled to minimal weight as against the defendant's concerns about plaintiff's probity." (Def. Post Trial Mem. Law at 8 n. 6.) Hynes's argument fails most clearly for the following reason: The jury found that the statement to New York magazine was a substantial and motivating factor in Hynes's decision to demote Reuland. After making this finding, the jury went on to reject Hynes's argument that he would have fired Reuland in any event because he believed that Reuland had lied to him. Based on these findings, Hynes cannot show that he "took the adverse employment action not in retaliation for the employee's speech, but because of the potential for disruption," Johnson, 342 F.3d at 114.
As Hynes cannot satisfy that requirement, I need not actually weigh the statement to New York magazine against the potential for disruption. For the sake of completeness, however, I note that it is unclear what disruption Hynes suggests would follow from Reuland's speech. Put another way, I am unclear as to what disruption "concerns about plaintiff's probity" refers to. I do not suggest that having a perceived liar in the Homicide Bureau does not implicate "the government's interest in the effective and efficient fulfillment of its responsibilities to the public," Connick, 461 U.S. at 150; I suggest only that it is Hynes's burden to justify this particular demotion, id. at 150, and that he has failed to point to any evidence of disruption. He points only to his belief that Reuland lied to him about his motives for seeking a promotion to the Homicide Bureau, a belief the jury apparently did not accept.
I am hesitant to weigh Reuland's speech against a suggested disruption that finds no support in the record other than Hynes's own testimony which was rejected by the jury. Jeffries instructs me to judge whether Hynes's prediction of the disruption that the speech would cause is reasonable. Jones, 342 F.3d at 114. To the extent that Hynes's argument is meant to suggest that the statement to New York magazine undermined his working relationship with Reuland, I find that the value of the statement to New York magazine outweighs that interest. The statement to New York magazine, on its face, criticized neither Hynes nor the office. It touched on Brooklyn's murder rate, a topic of extreme concern to the public. The statement was published in a magazine, not made in the workplace to an audience of Reuland's supervisors and colleagues. Furthermore, as a homicide prosecutor, Reuland was in a unique position to comment on the murder rate. See Harman v. City of New York, 140 F.3d 111, 119 (2d Cir. 1998) ("`[G]overnment employees are often in the best position to know what ails the agencies for which they work; public debate may gain much from their informed opinions.'" (quoting Waters v. Churchill, 511 U.S. 661, 674 (1994) (plurality opinion))). Therefore, even accounting for the jury's finding as to Reuland's motivation, the speech is entitled to great weight, at least enough to outweigh whatever disruption Hynes now alleges in footnote six of his posttrial submission.
C. Qualified Immunity
Hynes argues that he is entitled to qualified immunity for his actions, especially in light of the jury's finding as to Reuland's motivation. Hynes cannot benefit from qualified immunity, however, because of the jury findings as to his own motivation. Specifically, the jury found that the statement to New York magazine was a substantial or motivating factor in Hynes's decision to demote Reuland. The jury also found that Hynes would not have demoted Reuland but for that statement.
In cases such as this one, "where a . . . specific intent is actually an element of the plaintiff's claim as defined by clearly established law, it can never be objectively reasonable for a government official to act with the intent that is prohibited by law." Locurto v. Safir, 264 F.3d 154, 169 (2d Cir. 2001). Otherwise, defendants such as Hynes would be immunized "`in cases involving motive-based constitutional torts, so long as they could point to objective evidence showing that a reasonable official could have acted on legitimate grounds.'" Id. (quoting Hoard v. Sizemore, 198 F.3d 205, 218 (6th Cir. 1999)); accord Johnson v. Ganim, 342 F.3d 105, 117 (2d Cir. 2003) (quoting Locurto, 264 F.3d at 169). Therefore, as the jury found that Hynes acted with the intent that is prohibited by law, the qualified immunity defense is not available to him.
CONCLUSION
For the foregoing reasons, Reuland's motion is granted and Hynes's motion is denied. The Clerk is directed to enter judgment for Reuland in the amount of $30,000.
So Ordered.