IN THE SUPREME COURT OF THE UNITED STATES OF AMERICA

CITY OF OAKS GROVE,

Petitioner,

-against-

RHETT DARCY,

Respondent,

No. 11-5309

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRTEENTH CIRCUIT

BRIEF FOR RESPONDENT

L.M. Student 9722, Esq.

Attorney for Respondent

123 Connecticut Avenue NW

Suite 45

Washington, DC 20123

(201) 555-1234

ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................................... iii

CONSTITUTIONAL PROVISION INVOLVED .......................................................................... 1

STATUTE INVOLVED ................................................................................................................. 1

PRELIMINARY STATEMENT .................................................................................................... 1

QUESTION PRESENTED ............................................................................................................. 2

STATEMENT OF THE CASE ....................................................................................................... 2

SUMMARY OF THE ARGUMENT ............................................................................................. 4

ARGUMENT .................................................................................................................................. 5

I. SWORN TESTIMONY BY A PUBLIC EMPLOYEE IS PROTECTED

FREE SPEECH UNDER THE FIRST AMENDMENT BECAUSE

ALLOWING FOR ITS PROTECTION WOULD NOT UNDERMINE

CURRENT LAW AND WOULD PRESERVE ITS LONGSTANDING

IMPORTANCE TO THE FUNCTIONING OF AMERICAN

JURISPRUDENCE. ............................................................................................................ 7

A. Distinguishing sworn testimony as protected free speech does not

interfere with prior holdings that protect speech made by a public

employee that is of public concern. ........................................................................ 8

B. American jurisprudence is fundamentally based on the well-

established duty of every citizen to testify when compelled to do

so. ............................................................................................................................ 9

II. IN THE PRESENT CASE, MR. DARCY’S SWORN TESTIMONY

SHOULD BE CONSIDERED PROTECTED FREE SPEECH UNDER

THE FIRST AMENDMENT AND THEREFORE THE COURT OF

APPEALS FOR THE THIRTEENTH CIRCUIT’S REVERSAL

SHOULD BE UPHELD ALLOWING FOR MR. DARCY’S § 1983

CLAIM TO GO FORWARD............................................................................................ 10

A. The proposed alternative remedies for Mr. Darcy do not afford

consistent or effective relief. ................................................................................. 11

B. Upholding the Thirteenth Circuit Court of Appeals decision in the

present case promotes the ideals fundamental to our system of

jurisprudence. ........................................................................................................ 11

iii

TABLE OF AUTHORITIES

CASES

Blackmer v. United States, 284 U.S. 421 (1932). ................................................................. 5, 7, 10

Blair v. United States 250 U.S. 273 (1919). ......................................................................... 5, 7, 12

Briscoe v. LaHue, 460 U.S. 325 (1983). ....................................................................................... 12

Broadrick v. Oklahoma, 413 U.S. 601 (1973). ............................................................................. 10

Connick v. Myers, 461 U.S. 138 (1983) ..................................................................................... 4, 5

Garcetti v. Ceballos, 547 U.S. 410 (2006). ............................................................................ passim

Jackler v. Byrne, 658 F.3d 225 (2d Cir. 2011). ........................................................................ 7, 10

Karl v. City of Mountlake Terrace, 678 F.3d 1062 (9th Cir. 2012). ........................................... 7, 9

Morales v. Jones, 494 F.3d 590 (7th Cir. 2007). ........................................................................ 7, 8

Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cnty. 391 U.S. 563 (1968). ............ 4

Rehberg v. Paulk, 132 S. Ct. 1497 (2012). ................................................................................... 12

Reilly v. City of Atlantic City, 532 F.3d 216 (3d Cir. 2008). ..................................................... 7, 9

Salve Regina Coll. v. Russel, 499 U.S. 225 (1991). ....................................................................... 7

United States v. New York Telephone Co., 434 U.S. 159 (1977). ....................................... 5, 7, 10

United States v. Nixon, 418 U.S. 683 (1974). .......................................................................... 5, 10

STATUTES

5 U.S.C. § 2302 (2006). ................................................................................................................ 11

42 U.S.C. § 12132 (2006). .............................................................................................................. 1

42 U.S.C. § 1983 (2006). .................................................................................................. 1, 2, 7, 12

Cal. Gov’t. Code § 8547 (2005).................................................................................................... 11

iv

MISCELLANEOUS

Adelaida Jasperse, Constitutional Law—Damned If You Do, Damned If You Don’t: A Public

Employee’s Trilemma Regarding Truthful Testimony, 33 W. New Eng. L. Rev. 623 (2011). .. 6

Caroline A. Flynn, Policeman, Citizen, or Both? A Civilian Analogue Exception to Garcetti v.

Ceballos, 111 Mich. L. Rev. 759, (2013) .................................................................................... 6

Fed. R. Civ. P. 12(b)(6)................................................................................................................... 2

Leslie Pope, Huppert v. City of Pittsburg: The Contested Status of Police Officer’s Subpoenaed

Testimony After Garcetti v. Ceballos, 119 Yale L.J. 2143, (2010). ........................................... 7

Matt Wolfe, Does the First Amendment Protect Testimony by Public Employees?, 77 U. Chi. L.

Rev. 1473, (2010). ....................................................................................................................... 6

Ruben J. Garcia, Against Legislation: Garcetti v. Ceballos and the Paradox of Statutory

Protection for Public Employees, 7 First Amend. L. Rev. 22, (2010). ................................. 6, 12

1

CONSTITUTIONAL PROVISION INVOLVED

Congress shall make no law respecting an establishment of religion, or prohibiting

the free exercise thereof; or abridging the freedom of speech, or the press; or the

right of the people peaceably to assemble, and to petition the Government for a

redress of grievances.

U.S. Const. amend I.

STATUTE INVOLVED

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party injured in an

action at law . . . .

42 U.S.C. § 1983 (2006).

PRELIMINARY STATEMENT

On January 5, 2010, Rhett Darcy filed a complaint against the City of Oaks Grove in

United States District Court for the Northern District of Alagada alleging employment

discrimination under the Americans for Disabilities Act, specifically 42 U.S.C. § 12132 (2006)

alleging that the defendant discriminated against him on the basis of his disability. (R. at 11.)

Mr. Darcy filed a complaint against the City of Oaks Grove pursuant to 42 U.S.C. § 1983 (2006)

alleging that the defendant retaliated against him for his sworn testimony before a grand jury,

constitutionally protected speech under the First Amendment of the United States Constitution,

thereby depriving him of rights secured under the Constitution and laws of the United States. (R.

at 12.) This brief focuses exclusively on the second issue; the first issue is addressed in a

separate brief submitted for respondent.

On May 17, 2010, defendant filed a motion for dismissal pursuant to Federal Rule of

Procedure 12(b)(6) because Mr. Darcy’s sworn testimony before a grand jury is not protected

2

under the First Amendment as it was made pursuant to his official job duties as a police officer.

The district court held that Mr. Darcy’s sworn testimony was not protected under the First

Amendment, and thus provided no basis for his claim pursuant to 42 U.S.C. § 1983 (2006) and

granted defendant’s motion for dismissal under Fed. R. Civ. P. 12(b)(6). (R. at 17.)

Mr. Darcy appealed the district court’s decision to the United States Court of Appeals for

the Thirteenth Circuit. (R. at 19.) The Thirteenth Circuit reversed the district court’s order

granting Defendant’s motion to dismiss and remanded the case for further proceedings , holding

that sworn testimony was protected free speech regardless of whether the speech at issue was

made pursuant to an employee’s official job duties. (R. at 21.) The City of Oaks Grove then

petitioned for writ of certiorari to the United States Supreme Court. This Court granted the

Defendant’s petition on October 5, 2012. (R. at 23.)

QUESTION PRESENTED

Whether the sworn testimony of a public employee is protected free speech under the

First Amendment when the sworn testimony, compelled by a judicially enforced subpoena, is

made pursuant to his job duties as a member of an investigative task force into police department

corruption.

STATEMENT OF THE CASE

Rhett Darcy, veteran of the United States Marine Corps, was a decorated police officer

for the City of Oaks Grove for over twenty years, ending his distinguished career with the rank

of Sergeant. (R. at 3-4.) During his tenure as an officer of the law, Mr. Darcy distinguished

himself on several occasions. In 2004, he was awarded the Distinguished Service Medal for his

off-duty assistance in the pursuit and capture of two men charged with multiple assaults on

college-age women.. His integrity and performance as a public servant reached its nadir in 2007

3

when the Alagada Bureau of Investigation (“ABI”) chose Mr. Darcy to participate in a special

task force created in response to concerns about internal corruption within the Oaks Grove Police

Department related to the criminal activities of the Unknown Vice Lords (“UVL”) gang. The

task force was primarily created due to an unusual decrease in closed cases relating to the UVL

and an anonymous tip that asserted certain Oaks Grove Police Department officers were

accepting bribes to effectuate the UVL’s avoidance of prosecution for various drug-related and

violent offenses. (R. at 4.) Darcy was tasked with monitoring specific police employees

suspected of wrongdoing and implicated five police officers for accepting bribes and informing

UVL members of pending search warrants.. (R. at 5).

In December 2008, a grand jury was convened to investigate the allegations of corruption

in the Oaks Grove Police Department. Mr. Darcy was subpoenaed and subsequently testified at

length to the grand jury regarding his work with the ABI task force and its findings. In the same

testimony, Mr. Darcy indicated his delivery of the results of the investigation to Chief Collins

and Collins’ apparent failure to report these allegations to Oaks Grove Police Department

Internal Affairs—an act contravening department policy. (R. at 8-9). One day subsequent to his

sworn testimony, Darcy was approached by Chief Collins and questioned about his testimony,

with Darcy only stating that he “told the truth”. Some three weeks later, Darcy overheard a

conversation between Chief Collins and another Oaks Grove police officer. Chief Collins

disparaged Darcy’s role in the ABI task force and expressed disbelief in any officer testifying

“against the department.” (R. at 9).

In February 2009, Mr. Darcy was served with three written disciplinary warnings. The

first two alleged his inability to follow proper police procedure on the night he sustained his

career changing injury. The third related to Darcy’s alleged failure to timely submit paperwork

4

relating to a domestic violence call from earlier in the month. To this point in his career, Mr.

Darcy had a flawless service record. (R. at 10). Pursuant to Oaks Grove Police Department

policy, Mr. Darcy was dismissed from his position with no chance to appeal the decision. It is

his belief that these warnings were simply a pretext for his dismissal. Mr. Darcy believed his

termination was retaliation for his grand jury testimony and contends that his freedom of speech

under the United States Constitution was violated, prompting a 42 U.S.C. § 1983 cause of action

against the City of Oaks Grove.

SUMMARY OF THE ARGUMENT

We ask this Court to distinguish sworn testimony made by a public employee pursuant to

his job duties as protected free speech and allow for Mr. Darcy’s claim under 42 U.S.C. § 1983

to go forward. Public employees do not relinquish their rights and duties that they hold as

ordinary citizens; however, the context of public employment allows situations which the

employee’s rights and duties are balanced against the needs of the government as an employer.

This Court’s most recent interpretation of this issue created a standard by which a public

employee, speaking pursuant to his official job duties loses First Amendment protection.

Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). If this threshold test determines that the public

employee is not speaking pursuant to his job duties, a test balancing the public’s interest and

concern in the speech at issue with the employer’s interest in maintaining the efficiency of

services provided via its employees. See Connick v. Myers, 461 U.S. 138, 142 (1983); see also

Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cnty. 391 U.S. 563, 568 (1968). In

addition, by distinguishing sworn testimony as protected free speech, this Court would maintain

its longstanding deference to the sacred place that sworn testimony occupies within our system

of jurisprudence and the assertion that it is the duty of every citizen to provide it when properly

5

compelled to do so. See United States v. New York Telephone Co., 434 U.S. 159, 175 (1977);

see also United States v. Nixon, 418 U.S. 683, 709 (1974); see also Blackmer v. United States,

284 U.S. 421, 438 (1932); see also Blair v. United States 250 U.S. 273, 281 (1919).

Allowing sworn testimony to be protected free speech would allow for Mr. Darcy’s §

1983 claim to go forward and would prevent an injustice. The City of Oaks Grove maintains that

other remedies are available for Mr. Darcy to seek relief from the court. They maintain that

current whistleblowing statutes and employee protection statutes better serve Mr. Darcy in his

cause of action. Without exception, the statutes in question are either inadequate to the task or

wholly inappropriate for a litigant in Mr. Darcy’s position. In seeking to undermine Mr. Darcy’s

free speech claim, the City of Oaks Grove undermines an ideal fundamental to American

jurisprudence—sworn testimony used as a means to achieving justice.

ARGUMENT

The Thirteenth Circuit’s holding that sworn testimony may be protected under the First

Amendment when given pursuant to a public employee’s job duties should be upheld by this

Court. By applying the threshold test established in Garcetti ad infinitum, far too much speech is

affected. The specialized context of sworn testimony is not directly addressed and should be

distinguished from the Garcetti blanket inclusion of all statements made pursuant to official job

duties. Garcetti, 547 U.S. at 421.

In distinguishing sworn testimony, this Court would not interfere with the continued

application of the test set forth in Connick, as it evolved from the holding in Pickering. The

public interest in allowing for sworn testimony given by a public employee unfettered from

concern for retaliation is plainly without question. The need for efficiency in the day-to-day

operation of a public employer’s working environment is not compromised by this distinction

6

given to sworn testimony. Scholarly commentary has emphasized the need for this distinction

and the dilemma that its current absence has created in the courts. See Caroline A. Flynn,

Policeman, Citizen, or Both? A Civilian Analogue Exception to Garcetti v. Ceballos, 111 Mich.

L. Rev. 759, (2013) (employee speech that is analogous to protected speech made as a citizen

should be protected as well); Adelaida Jasperse, Constitutional Law—Damned If You Do,

Damned If You Don’t: A Public Employee’s Trilemma Regarding Truthful Testimony, 33 W.

New Eng. L. Rev. 623 (2011) (arguing that truthful testimony, properly compelled, deserves

First Amendment protection when given as a function of a public employee’s job duties); see

also Ruben J. Garcia, Against Legislation: Garcetti v. Ceballos and the Paradox of Statutory

Protection for Public Employees, 7 First Amend. L. Rev. 22, (2010) (taking constitutional rights

away from public employees in the performance of their job duties does not allow for effective

whistleblowing protections); see also Matt Wolfe, Does the First Amendment Protect Testimony

by Public Employees?, 77 U. Chi. L. Rev. 1473, (2010) (concluding that the legal duty of

providing testimony when compelled is paramount and should be protected under the First

Amendment regardless of whether it is a public employee’s job duty); see also Leslie Pope,

Huppert v. City of Pittsburg: The Contested Status of Police Officer’s Subpoenaed Testimony

After Garcetti v. Ceballos, 119 Yale L.J. 2143, (2010) (sworn testimony should be eligible for

First Amendment protection under Garcetti).

Recent decisions in courts below have also emphasized this distinction, holding that

sworn testimony by a public employee pursuant to his job duties is protected free speech under

the First Amendment. This Court, in creating a rationale for this distinction, need only follow

the lead of its courts below. See Karl v. City of Mountlake Terrace, 678 F.3d 1062 (9th Cir.

2012); see also Jackler v. Byrne, 658 F.3d 225 (2d Cir. 2011); see also Reilly v. City of Atlantic

7

City, 532 F.3d 216 (3d Cir. 2008); see also Morales v. Jones, 494 F.3d 590 (7th Cir. 2007). As

the present case presents a question of first impression regarding constitutional law, a de novo

standard of review is applicable. Salve Regina Coll. v. Russel, 499 U.S. 225, 231 (1991).

In the case at bar, allowing for sworn testimony by a public employee pursuant to his job

duties would grant relief for Mr. Darcy’s cause of action under 42 U.S.C. § 1983 (2006) and

provides the only effective means to seek that relief. Contrary to the position of the Petitioner,

there are no effective whistleblowing statutes or other statutory means for Mr. Darcy’s use.

Also, in the present case, strict application of the Garcetti threshold test would deprive

Mr. Darcy of his constitutionally protected right to free speech and abrogate his paramount

duties as a citizen to duly offer sworn testimony when compelled to do so, an integral part of the

judicial process in the United States. This duty as a citizen regarding sworn testimony is long

established by this Court as being a fundamental duty and obligation, with precedent reaching

back for almost a century. See United States v. New York Telephone Co., 434 U.S. 159 (1977);

see also Blackmer v. United States, 284 U.S. 421 (1932); see also Blair v. United States 250

U.S. 273 (1919).

As the Garcetti threshold is not applicable in situations regarding sworn testimony made

by a public employee despite said testimony being pursuant to his official job duties and the duty

to enter sworn testimony when compelled is an obligation of every citizen, regardless of whom

they are employed by, this Court must uphold the decision of the Thirteenth Circuit

I. SWORN TESTIMONY BY A PUBLIC EMPLOYEE IS PROTECTED FREE

SPEECH UNDER THE FIRST AMENDMENT BECAUSE ALLOWING FOR

ITS PROTECTION WOULD NOT UNDERMINE CURRENT LAW AND

WOULD PRESERVE ITS LONGSTANDING IMPORTANCE TO THE

FUNCTIONING OF AMERICAN JURISPRUDENCE.

The decision in Garcetti created a broad rule that left a great deal of confusion regarding

the application of the threshold test. Many courts below struggled with what this Court meant by

8

job duties and how that applied in certain situations. Most prominently, the role of sworn

testimony as a function of employment has caused a division among the Courts of Appeal. The

rule in Garcetti should be narrowed and an exception made for sworn testimony that is given by

a public employee pursuant to his job duties, thereby giving the public employee the free speech

protection enjoyed by all citizens of the United States regardless of their employment.

A. Distinguishing sworn testimony as protected free speech does not interfere

with prior holdings that protect speech made by a public employee that is

of public concern.

Recent decisions from courts below indicate a general confusion about the nature of the

Garcetti threshold and its application. The trend in a portion of the federal circuits is to narrowly

tailor the holding and find that sworn testimony given by a public employee pursuant to his job

duties is protected free speech. In doing so, the tripartrate test in Garcetti is maintained as good

law, as the balancing test between an issue of public concern and managerial efficiency leans

heavily towards sworn testimony being of utmost public concern.

Shortly after the decision in Garcetti, the Seventh Circuit Court of Appeals ruled on a

case involving the nature of a police officer’s subpoenaed testimony in a civil deposition during

the course of his job duties. In Morales v. Jones, the Court of Appeals found that such testimony

was not pursuant to his official duties as “it was not part of what he was employed to do.” 494

F.3d 590, 598 (2007).

One year later, a decision by the Third Circuit held that a police officer’s testimony

constituted citizen speech protected by the First Amendment as a matter of law. Reilly v. City of

Atlantic City, 532 F.3d 216 (3d Cir. 2008). In facts that are highly similar to the present case, an

Atlantic City, New Jersey police detective was part of an undercover investigation regarding

corruption within his department. Several years after the trial and his subsequent testimony at

the criminal trial of a fellow officer, Reilly alleged retaliatory actions by the department that

9

forced him into an early retirement and filed suit pursuant to 42 U.S.C. § 1983. The Reilly court

did not directly address the official duties test from Garcetti, arguing that it did not specifically

address sworn testimony and affirming the “settled principle” that every citizen owes the duty of

testimony when so compelled. Id. at 231. When Reilly gave testimony, he did so as a citizen

first and as a police officer second. Id.

A police department employee was recently held to be a private citizen when testifying in

response to a subpoena that issued from a federal civil rights suit against her employer. Karl v.

City of Mountlake Terrace, 678 F.3d 1062 (9th Cir. 2012). Karl alleged that subsequent job

demotions and her termination related directly to her testimony and filed suit claiming retaliation

under 42 U.S.C. § 1983 (2006). The court held that her subpoenaed testimony on matters related

to her job was not dispositive and the testimony “cannot fairly be characterized as “created or

commissioned” by [her employer]. Id. at 1072, quoting Garcetti, 547 U.S. at 422. The court

went further and stated that Garcetti did not in any way alter the plaintiff’s First Amendment

right to give sworn testimony, as she was acting in her role foremost as a private citizen. Karl,

678 F.3d at 1074.

B. American jurisprudence is fundamentally based on the well-established

duty of every citizen to testify when compelled to do so.

It has long been recognized by this Court that this duty is fundamental part of our

adversarial system. “[The] conviction that private citizens have a duty to provide assistance to

law enforcement officials when it is required is by no means foreign to our traditions.” United

States v. New York Telephone Co., 434 U.S. 159, 175 n 24 (1977). Reaching further back in

time, the Court reiterated the import of testimony. “It is . . . beyond controversy that one of the

duties which the citizen owes his government is to support the administration of justice by

attending its courts and giving his testimony . . .”. Blackmer v. United States, 284 U.S. 421, 438

10

(1932). No citizen is exempt from this duty, the President of the United States included. Nixon

418 U.S. at 709. Mr. Darcy fulfilled two duties by giving testimony before a grand jury: as an

officer of the law, he performed his employee-mandated responsibility and, most importantly, he

satisfied his responsibility as a citizen to ensure the sanctity of our system of jurisprudence.

Accordingly, his speech is constitutionally protected citizen free speech. Jackler v. Byrne, 658

F.3d 225, 234 (2d Cir. 2011).

Similarly, the Court has stated that citizens who work for the government should not be

deprived of their fundamental rights. Garcetti, 547 U.S. at 419. See Broadrick v. Oklahoma,

413 U.S. 601, 621 (1973) (J. Douglas, dissenting). (“Those who work for government have no

watered-down constitutional rights . . . I would keep them on the same plane as all other

people.”) The right to freedom of speech is one the United States’ most cherished liberties and is

only with great trepidation that it has been limited. The public interest is best served when

public employees can freely submit sworn testimony and know that the testimony they give is

duly protected under the First Amendment. Mr. Darcy should not be punished for exercising this

right in the course of his sworn testimony before a grand jury.

II. IN THE PRESENT CASE, MR. DARCY’S SWORN TESTIMONY SHOULD

BE CONSIDERED PROTECTED FREE SPEECH UNDER THE FIRST

AMENDMENT AND THEREFORE THE COURT OF APPEALS FOR THE

THIRTEENTH CIRCUIT’S REVERSAL SHOULD BE UPHELD ALLOWING

FOR MR. DARCY’S § 1983 CLAIM TO GO FORWARD.

Mr. Darcy presented grand jury testimony pursuant to a subpoena issued by the court. (R. at

8-9). This testimony reflected his involvement in an ongoing investigation into corruption within

the Oaks Grove Police Department by the Alagada Bureau of Investigation. His job duties as an

officer of the law were to execute the orders of his superior officers in the performance of the

investigation and to identify those police department employees responsible for the alleged

corruption. (R. at 7). As retaliation for his testimony, Mr. Darcy was terminated from his job, a

11

job that he wishes to return to. Remedies offered up by the Petitioner do not provide relief for

Mr. Darcy’s cause of action. In addition, the testimony offered by Mr. Darcy is no different than

testimony that would be offered by an ordinary citizen in the execution of their civic duty to

appear before a grand jury when so summoned.

A. The proposed alternative remedies for Mr. Darcy do not afford consistent

or effective relief.

Petitioner argues that Darcy’s speech not be accorded First Amendment protection

because, in addressing official wrongdoing, he is eligible for protection under current

whistleblower statutes. Given that whistleblowing is defined as the “exposing [of] an official’s

fault to a third party or to the public,” Garcetti 547 U.S. at 440, (Souter, D., dissenting, emphasis

added), Darcy does not meet the criteria offered by Petitioner for relief. As Mr. Darcy was a

member of an undercover investigation to expose corruption within his police department, he

was unable to report these findings to any third party or a member of the public.

Justice Souter further indicates empirical studies in his dissent that show whistleblower

statutes to be patchy at best with little consistency in application and protection between

jurisdictions, with many providing no private right of action. Id. See Garcia, supra, at 35-38;

see e.g. Civil Service Reform Act, 5 U.S.C. § 2302 (2006); see also California Whistleblower

Protection Act, Cal. Gov’t. Code § 8547 (2005). Darcy was subpoenaed and compelled to testify

before a grand jury and describe the findings of the ABI task force and the results of his

investigation within the Oaks Grove Police Department. He did not report these findings to a

third party or the public. Mr. Darcy presented testimony to a grand jury pursuant to a subpoena,

his duty as a citizen.

B. Upholding the Thirteenth Circuit Court of Appeals decision in the present

case promotes the ideals fundamental to our system of jurisprudence.

12

The duty to testify before a grand jury is not limited to officers of the law or any other

employee of those public entities charged with the prosecution of law and order. This

responsibility is the duty of every citizen of the United States. Blair, 250 U.S. at 281. Public

employees are compelled to testify before a jury as citizens and not vice versa. The Court visited

this very question on two separate occasions and reached a concurrent conclusion in both

instances. In a 42 U.S.C. § 1983 decision of thirty years ago, this Court opined that there is no

reason to distinguish law enforcement witnesses from lay witness and the police officer in

question may reasonably be viewed as acting like any other witness sworn to tell the truth. This

Court further found that nothing in the previously mentioned statute suggests that law

enforcement officials belong in a “narrow, special category.” Briscoe v. LaHue, 460 U.S. 325,

335-36 (1983). See Id. at 342 (“A police officer on the witness stand performs the same function

as any other witness.”); see also Rehberg v. Paulk, 132 S. Ct. 1497, 1499 (2012) (emphasizing

the holding in Briscoe and affirming the lack of distinction between law enforcement officials

and ordinary citizens). There is no compelling argument that separates the status of the

Respondent in the present case from these distinguishing statements.

CONCLUSION

For the foregoing reasons, this Court must affirm the court of appeals and find that Mr.

Darcy’s sworn testimony is protected free speech under the First Amendment and allow his

claim under 42 U.S.C. § 1983 to go forward.

13

L.M. Student 9722, Esq.

Attorney for Respondent

123 Connecticut Avenue NW

Suite 45

Washington, DC 20123

(201) 555-1234

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing has been served upon opposing counsel by

placing same in the United States mail, postage prepaid, on April 24, 2013.