# Foraker v. Chaffinch

> Court of Appeals for the Third Circuit · August 30, 2007 · 501 F.3d 231

URL: https://www.frixlaw.com/law-library/cases/9634167

## Case

- **Full name:** Sergeant Christopher D. FORAKER, Individually and in His Official Capacity as Superintendent of the Delaware State Police v. Colonel L. Aaron CHAFFINCH; Lieutenant Colonel Thomas F. MacLeish, Individually and in His Official Capacity as Deputy Superintendent of the Delaware State Police; David B. Mitchell, in His Official Capacity as Secretary of the Department of Safety and Homeland Security of the State of Delaware; Division of State Police Department of Safety and Homeland Security State of Delaware (D.C. Civil No. 04-Cv-01207); Corporal B. Kurt Price; Corporal Wayne Warren Sergeant Christopher D. Foraker v. Colonel L. Aaron Chaffinch, Individually and in His Official Capacity as Superintendent of the Delaware State Police; Lieutenant Colonel Thomas F. MacLeish, Individually and in His Official Capacity as Deputy Superintendent of the Delaware State Police; David B. Mitchell, in His Official Capacity as the Secretary of the Department of Safety and Homeland Security of the State of Delaware; Division of State Police, Department of Safety and Homeland Security, State of Delaware (D.C. Civil No. 04-Cv-00956) B. Kurt Price, Wayne Warren, Christopher D. Foraker, Appellants. Dismissed Per the Court’s Order of 11/7/06
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** August 30, 2007
- **Citations:** 501 F.3d 231; 2007 WL 2445561
- **Precedential status:** Published
- **Opinion:** Concurrence by Pollak
- **Judges:** Smith, Greenberg, Pollak
- **Cited by:** 93 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Abrogated on other grounds by Borough of Duryea v. Guarnieri, 131 S. Ct. 2488 (2011).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9634167

## How later opinions describe it (automated extraction)

- holding that instructors in Delaware State Police’s firearms training unit acted within the scope of their duties when they reported problems with one of the unit’s firing ranges because “[r]eporting problems at the firing range was among the tasks [they] were paid to perform”
- explaining that “when one files a ‘petition’ one is addressing government and asking government to fix what, allegedly, government has broken or has failed in its duty to repair,” and that “[Formal petitions are defined by their invocation of a formal mechanism of redress”
- holding that plaintiffs "were acting within their job duties when they expressed their concerns up the chain of command” and to the State Auditor
- holding that police officers’ statements concerning hazardous conditions at a firing range were made pursuant to their official duties because they were obligated to report that type of information up the chain of command
- holding that police officers’ statements concerning hazardous conditions at a firing range were made within their official duties since they were obligated to report that type of information up the chain of command

## Opinion text

POLLAK, District Judge,
concurring:
I join the opinion and judgment of the court.
The opinion explains with precision that the free speech aspect (as distinct from the Petition Clause aspect) of this case dealing with the rights of public employees is squarely governed by the Supreme Court’s recent decision in Garcetti v. Ceballos, — U.S. -, 126 S.Ct. 1951 , 164 L.Ed.2d 689 (2006): “The result required by Garcetti illustrates how that opinion narrowed the Court’s jurisprudence in the area of employee speech. Although under Garcetti an employee’s right to protest matters of public concern is not automatically forfeited by his choice of a workplace forum, that right is limited.” As the court further observes, under Garcetti “the ‘controlling factor’ in removing speech from the First Amendment [is] that the expressions were made pursuant to employment duties.” In *250 the case at bar, it is not surprising that reports made by Corporal B. Kurt Price and Corporal Wayne Warren within the chain of command of the Delaware State Police were regarded as “made pursuant to employment duties.” Less clear is that the statements Price and Warren made to the State Auditor-statements ordered to be made to a high state official beyond the chain of state police command — were part of their employment duties. As the court notes, “giving statements to the State Auditor was not part of [appellants’] everyday duties.” But, given the statements Price and Warren had made to their senior officers, it was not clear error for the District Court to find that the directive to Price and Warren to aid the State Auditor’s inquiry broadened the scope of their employment duties. See Gustafson v. Jones, 290 F.3d 895, 906 (7th Cir.2002).
It may be expected that Garcetti will, to some extent, inhibit federal judicial micromanaging of public employment practices. It also may be expected that Garcetti will, to some extent, inhibit dissemination of information of arguable public interest about the operations of government agencies. How the balance will be struck may be expected to depend, to some extent, on the nuanced judgments of public employees and their superiors, and also of courts, on the scope of a public employee’s employment duties. Compare Garcetti 126 S.Ct. at 1961-62 , with id. at 1963 (Stevens, J., dissenting), and id. at 1965, 1968 (Souter, J., dissenting).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9634167. Public record. Not legal advice.