- Associated Press - Wednesday, January 14, 2015

NEW YORK (AP) - A former police lieutenant who alleges he was punished for communicating with two news reporters can pursue his First Amendment claims against Suffolk County, a federal appeals court ruled Wednesday.

The 2nd U.S. Circuit Court of Appeals in Manhattan reinstated Raymond Smith’s lawsuit against Suffolk County and its police commissioner, saying a magistrate judge was too quick to dismiss it.

A three-judge panel reinstated the lawsuit, which had been tossed in February 2013 by a federal magistrate judge who concluded Smith had failed to prove there was a connection between his protected speech and disciplinary action taken against him.

The appeals court noted that Smith had been disciplined or warned for improper use of his police department computer on several occasions even before it was discovered he was communicating with journalists for a newspaper and a television network.

In 2007, Smith was accused of having “repeatedly, and without authorization,” communicated by email from 2004 through 2007 with representatives of Newsday and CNN, the appeals court said.

In January 2008, he was transferred to an administrative, non-supervisory position working in an office without a computer, a job that included no overtime or night shift pay, causing him to experience a 10 percent pay cut, the 2nd Circuit said. It added that two disciplinary charges were filed against him later that month accusing him of improperly communicating with the media, and he was eventually suspended for 30 days without pay. He retired in April 2008 rather than face further disciplinary proceedings.

His lawsuit seeks his job back and unspecified monetary damages, including back pay.

A message left with the county attorney was not immediately returned Wednesday.

Smith’s attorney, Steven Morelli, called him “a fervent believer in First Amendment rights” and said the court decision was a victory for him and for “all those who hold freedom of speech dear.”

“We are looking forward to a trial in this matter, so that these rights will be addressed in a public forum,” he said.

In reinstating Smith’s case, the appeals court noted that the police department characterized the content of the speech and cited that characterization as the basis for several disciplinary charges.

It cited a March 2008 internal affairs bureau memo stating that Smith in the emails “had nothing positive to say about the conduct of department business; conversely, the nature of many of these emails was such that they tended to bring discredit to the department.”

The appeals court added: “Given the plain language of the charges against Smith and the internal memoranda, a reasonable juror could conclude that the department’s actions were motivated, at least in part, by a retaliatory animus.”

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