    11-1482-cv
    Kirkpatrick v. Village of Washingtonville

                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007,
is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing
a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic
database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not
represented by counsel.

             At a stated term of the United States Court of Appeals for the Second Circuit, held at the
    Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
    the 7th day of August, two thousand twelve.

    Present:
             AMALYA L. KEARSE,
             ROSEMARY S. POOLER,
             DEBRA ANN LIVINGSTON,
                      Circuit Judges.
    _____________________________________________

    WAYNE KIRKPATRICK,

                 Plaintiff-Appellant,

                              v.                                    No. 11-1482-cv

    VILLAGE OF WASHINGTONVILLE, JOSEPH GALANTE, DAVID J. HEINTZ, STEPHEN
    BOGERT, MATTHEW DAVIS,

                 Defendants-Appellees,

    THOMAS DEVINKO, JOHN DOES 1–7,

             Defendants.
    _____________________________________________

    For Plaintiff-Appellant:                Dennis E.A. Lynch, Feerick Lynch MacCartney, PLLC, South
                                            Nyack, N.Y.

    For Defendants-Appellees:               Adam I. Kleinberg, Anthony F. Cardoso, Sokoloff Stern LLP,
                                            Westbury, N.Y.

                                                           1
        UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED

that the order of the District Court is AFFIRMED.

        Plaintiff-Appellant Wayne Kirkpatrick (“Kirkpatrick”) appeals from a decision and order of

the United States District Court for the Southern District of New York (Eginton, J.) granting

Defendants-Appellees’ motion for summary judgment on each of Kirkpatrick’s claims, brought

pursuant to 42 U.S.C. § 1983. Kirkpatrick argues that the March 2, 2009, e-mail sent to the

members of the Washingtonville Police Department, which stated that Police Chief Stephen Pascal

had been placed on administrative leave and that “[t]his subject is not to be discussed with anyone,”

amounted to an unconstitutional “gag order.” We assume the parties’ familiarity with the underlying

facts and procedural history of the case, and with the issues on appeal.

        We review de novo a district court’s grant of summary judgment. E.g., Durakovic v. Bldg.

Serv. 32 BJ Pension Fund, 609 F.3d 133, 137 (2d Cir. 2010). We will affirm only if, despite

resolving all ambiguities and drawing all inferences in favor of the non-movant, no genuine issues

of material fact exist and the moving party is entitled to judgment as a matter of law. See, e.g., Terry

v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).

        A government entity may not prohibit one of its employees from speaking as a citizen on a

matter of public concern unless the relevant government entity has “an adequate justification for

treating the employee differently from any other member of the general public.” Garcetti v.

Ceballos, 547 U.S. 410, 418 (2006). Accordingly, “employees speaking as citizens about matters

of public concern ‘must face only those speech restrictions that are necessary for their employers

to operate efficiently and effectively.’” Jackler v. Byrne, 658 F.3d 225, 242 (2d Cir. 2011) (quoting

and adding emphasis to Garcetti, 547 U.S. at 419). “Justifications may include such considerations



                                                   2
as maintaining efficiency, discipline, and integrity, preventing disruption of operations, and avoiding

having the judgment and professionalism of the agency brought into serious disrepute.” Piscottano

v. Murphy, 511 F.3d 247, 271 (2d Cir. 2007). When the government defends a restriction on speech

“as a means to . . . prevent anticipated harms, it must . . . . demonstrate that the recited harms are

real, not merely conjectural, and that the [restriction] will in fact alleviate these harms in a direct and

material way.” United States v. Nat’l Treasury Emps. Union, 513 U.S. 454, 475 (1995) (internal

quotation mark omitted); see also Harman v. City of New York, 140 F.3d 111, 122 (2d Cir. 1998)

(“Where the predictions of harm are proscriptive, the government cannot rely on assertions, but must

show a basis in fact for its concerns.”).

        Kirkpatrick first contests the district court’s conclusion that the police department directive

at issue in this case “only preclude[d] speech concerning an ongoing investigation and the related

personnel change.” Nothing in the record, however, indicates that the directive was any broader

than the district court’s description of it. Indeed, Kirkpatrick himself testified that the prohibition

extended only to discussion regarding the investigation. See Joint App’x at 137.

        Kirkpatrick next argues that the district court failed to set forth the specific factual basis for

its conclusion that the directive was necessary to further the government’s interest in operating

efficiently and effectively. But the district court noted testimony indicating that the directive was

intended to protect Pascal’s rights, and quoted a memorandum issued by the Board of the Village

of Washingtonville on March 24, 2009, explaining that “in the interest of fairness to all, and in order

to avoid compromising the pending investigation, we have asked that, as Department employees,

you not discuss the pending investigation.”




                                                    3
       Finally, Kirkpatrick argues that the government’s interest in preserving the integrity and

confidentiality of the ongoing investigation was outweighed by the importance of exposing official

misconduct. Kirkpatrick claims that the investigation and the “gag order” were implemented “for

political reasons” and to make the police department “more compliant.” But he presented no

evidence supporting this claim; indeed, Kirkpatrick admitted in a deposition that he did not know

why the investigation into Pascal’s conduct was initiated, see Joint App’x at 160, and stated that his

belief that Pascal was replaced to make the department “more compliant” was based on “just [his]

gut feeling,” see Joint App’x at 195.

       We have reviewed Kirkpatrick’s remaining arguments and find them to be without merit.

For the foregoing reasons, the judgment of the District Court is AFFIRMED.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




                                                  4
