Whistleblower cops face a system built to beat them down

After Saginaw County, Mich. Sheriff’s Deputy Garrett DeWyse accused coworkers of mishandling money, he said his sheriff gave him a new job assignment — picking up roadkill.

DeWyse looked to the courts for help. In 2016, he sued his sheriff’s department and alleged that the reassignment was retaliation for being a whistleblower.

But one court after another has thrown out his case, thanks to a narrow 2006 U.S. Supreme court decision that stripped free speech rights from public employees like DeWyse.

Advocates had warned the high court that their decision in the case of Garcetti v. Ceballos would be especially bad for police, giving departments a powerful way to ruin the lives of officers who dared to challenge law enforcement’s code of silence. The 5-4 majority opinion dismissed those fears by saying that whistleblower protection laws and labor codes would protect those who spoke out.

A USA TODAY examination of police whistleblower cases found that those protections have often failed.

The Supreme Court is seen at dusk Oct. 22, 2021, in Washington. In 2006, the U.S. Supreme Court in a 5-4 ruling in the case of Garcetti vs. Ceballos decided that public employees have no free speech protections for words they speak or write as part of their job duties.
The Supreme Court is seen at dusk Oct. 22, 2021, in Washington. In 2006, the U.S. Supreme Court in a 5-4 ruling in the case of Garcetti vs. Ceballos decided that public employees have no free speech protections for words they speak or write as part of their job duties.

Instead, the decision now sits at the top of a patchwork system of laws that vary from state to state, and sometimes even within states, forcing whistleblowers to seek help from government agencies that can at times treat them like outsiders while aiding the same departments they seek to expose.

USA TODAY spent a year building a database of cases from the past decade of officers who revealed the alleged misconduct of their coworkers. Reporters found that most cops who stepped forward to make an internal complaint said they faced retaliation in the form of demotions, firings and threats from their supervisors and peers.

In the hundreds of cases the newspaper reviewed, a similar pattern emerged: Whistleblowers who brought their claims or sought help from an agency outside their own department didn’t fare much better. Labor boards, prosecutors, licensing officials and other government agencies often sided with the same law enforcement agency against the whistleblower.

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Some legal experts say the Garcetti decision and similar laws are an important protection against public employees who make inciteful and hateful remarks as agents of the government. And the rejection of such cases by courts and other agencies only means the system works in weeding out frivolous claims.

DeWyse says his case proves the opposite.

According to his lawsuit, Saginaw County Sheriff William Federspiel put DeWyse on the roadkill detail after DeWyse refused to let a detective use forfeiture money stored in the evidence room to pay a confidential informant. DeWyse also reported to a county official that the sheriff was using forfeiture money without first turning it in to the county to properly account for it.

Garrett DeWyse poses for a portrait in Bay City, Mich. on Dec. 6, 2021. Five years ago, Garrett DeWyse sued Saginaw County Sheriff William Federspiel on claims that Federspiel moved him out of his evidence room job and forced him to spend his days picking up roadkill. The reassignment came after DeWyse told the county's finance director that the sheriff was letting detectives use forfeiture money for undercover drug buys instead of turning it in to the county as required by law. The sheriff admitted to the practice, but federal courts in Michigan threw out DeWyse's case.
Garrett DeWyse poses for a portrait in Bay City, Mich. on Dec. 6, 2021. Five years ago, Garrett DeWyse sued Saginaw County Sheriff William Federspiel on claims that Federspiel moved him out of his evidence room job and forced him to spend his days picking up roadkill. The reassignment came after DeWyse told the county's finance director that the sheriff was letting detectives use forfeiture money for undercover drug buys instead of turning it in to the county as required by law. The sheriff admitted to the practice, but federal courts in Michigan threw out DeWyse's case.

Although Federspiel admitted that what DeWyse said about the forfeiture money was true, federal courts in Michigan threw out DeWyse's case. Judges cited the Supreme Court’s Garcetti ruling in concluding that DeWyse made the claims while acting in his role as a public employee, so he had no free speech rights to protect him even if his claims were true. Courts also chided DeWyse for going outside his chain of command to report the sheriff — which shows that going to an outside agency can also prove harmful to police whistleblowers.

“When you speak up, you're just a small fish in a big pond and you're going up against the system itself," DeWyse said. "In government class we learn about branches of government and separation of powers, but when you go through something like this you realize the branches are not as separate as you think.”

Excerpt from a U.S. Court of Appeals decision issued on Oct. 9, 2020 in the case of DeWyse v. Federspiel. The court threw out DeWyse's case, citing the 2006 Siupreme Court decision in Garcetti v. Ceballos stripping first amendment protections for public employees for what they say as part of their job duties.
Excerpt from a U.S. Court of Appeals decision issued on Oct. 9, 2020 in the case of DeWyse v. Federspiel. The court threw out DeWyse's case, citing the 2006 Siupreme Court decision in Garcetti v. Ceballos stripping first amendment protections for public employees for what they say as part of their job duties.

Federspiel did not respond to requests for comment.

Dewyse no longer has a law enforcement career. He and his wife now own a crematorium.

His attorney, Phillip Ellison, said the DeWyse case is an example of how courts have let down police whistleblowers.

"The Garcetti case itself is not a terrible law for the first amendment, but when you have your thumb on the scale, and the courts come in with decisions like these, then police officers like Garrett don't have a chance," he said.

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USA TODAY News · Garrett DeWyse audio recording of meeting with Sheriff William Federspiel

'No constitutional right to be a policeman'

When it comes to the words of a police officer, the nation’s courts have never been inclined to give them free rein.

Supreme Court Justice Oliver Wendell Holmes, Jr. more than a century ago supported the firing of a police officer who was raising money for a political committee, saying in an 1892 opinion: “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”

The court’s stance softened with the 1968 ruling in the case of Pickering vs. Board of Education, which eventually established a two-part test to determine whether a public employee’s speech was protected under the First Amendment. Police officers would only have to prove that they spoke about matters of public concern, and their need to say it had to outweigh the employer’s need to keep the workplace free of disruptions.

That was the standard in 2000, when Los Angeles County prosecutor Richard Ceballos wrote a memo to his supervisors telling them he believed a sheriff’s deputy had falsified information to get a search warrant in an auto part theft case for which he was the lead prosecutor.

His supervisors rejected the claim and moved forward with the case. Ceballos later testified in court against the deputy as a defense witness in a failed attempt to get a judge to throw out the warrant. His supervisors then demoted him and transferred Ceballos to another courthouse.

Ceballos sued, claiming his bosses retaliated against him for exercising his first amendment right to free speech. Then-Los Angeles District Attorney Gil Garcetti’s administration denied that it had reassigned Ceballos for speaking out. But it also argued a legal point – that the First Amendment doesn’t apply when government employees make statements as part of their jobs. The Supreme Court ultimately agreed.

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USA TODAY News · Garcetti v. Ceballos - Opinion Announcement - May 30, 2006

In the fallout from the decision, an appellate court three years later ruled against Ron Huppert, a Pittsburg police officer who said he was transferred out of a gang unit and bullied by his new supervisor after he answered a grand jury subpoena and testified in court about corruption in the department. The court ruled that grand jury testimony was part of Huppert's job duties and that he could not win a claim that his First Amendment rights had been violated.

A few years later, a California appellate court threw out the case of Angelo Dahlia, who sought damages for what he alleged were First Amendment violations against him by his police department. Dahlia had told his bosses, internal affairs detectives and eventually outside investigators that his coworkers had beat up suspects and used other unlawful interrogation techniques after a 2007 bank robbery. The California court concluded in 2013 that applying the Garcetti decision “lead[s] to a vexing result in the context of police abuse.”

Even when cases pass the high bar of the Garcetti ruling, state whistleblower laws present another hurdle.

Excerpt from the U.S. Supreme Court majority opinion in the case of Garcetti v. Ceballos, which stripped first amendment rights from public employees' speech tied to their job duties. The opinion, written by Justice Anthony Kennedy, was released on May 30, 2006.
Excerpt from the U.S. Supreme Court majority opinion in the case of Garcetti v. Ceballos, which stripped first amendment rights from public employees' speech tied to their job duties. The opinion, written by Justice Anthony Kennedy, was released on May 30, 2006.

In Massachusetts, officer Matthew Gutwill sued the Framingham Police Department in 2016, saying they suspended and eventually demoted him after he made several allegations of corruption within his department.

Gutwill, a detective assigned to a local DEA Task force, met with the FBI’s corruption unit to report that a fellow officer had lied on the witness stand.

Gutwill had previously reported the allegation to his department leaders. Records from the investigation show that a sergeant assigned to investigate the matter concluded that the other officer had been untruthful. But a lieutenant overruled that decision, saying the issue involved “two good officers” and that siding with Gutwill would divide the department’s narcotics unit. Framingham’s police chief at the time agreed with the lieutenant’s decision to reject Gutwill's complaint.

According to Gutwill’s allegations, the day after he and his lawyer spoke to the FBI, the deputy chief in his department emailed Gutwill’s supervisor at the DEA and told him the department had decided to rotate him out of the task force. Gutwill claimed it was retaliation. Attorneys for the city countered that the reassignment had been in the works for months.

Police would later claim in court documents that Gutwill confronted his police chief and threatened to “blow the place up” or “turn it upside down” with his misconduct claims. An outside investigator the city hired to investigate sided with the chief, a move Gutwill and his lawyer alleged in court was tainted by the fact that the city paid the investigator to conduct the investigation.

A Massachusetts federal court ruled in January 2020 that Gutwill’s case passed an initial Garcetti test because his words to the FBI weren’t part of his job description. But under the Massachusetts Whistleblower Act, Gutwill was also required to prove that his actions as a whistleblower “played a substantial or motivating part” in the punishments against him. The courts found that Gutwill failed to prove that and threw out his case.

“I go to work every day embarrassed,” Gutwill said, telling USA TODAY in a recent interview he plans to retire in January because of the stigma of being accused of dishonesty. “I’m embarrassed to be there, and I’m going to leave embarrassed, but I don’t feel like I can stay any longer in these conditions.”

Former Framingham police chief Ken Ferguson referred questions to attorney John Cloherty, III, who represented Ferguson and the city in Gutwill's lawsuit.

"I would caution you against giving too much weight to Mr. Gutwill's claims when the courts have fully vetted it and tossed it out as meritless, and the appellate courts upheld that ruling," Cloherty said.

Whistleblower laws vary from state to state, and even within some states. In Alabama and Colorado, for example, the law does not cover municipalities or counties, excluding most police agencies. In Florida, whistleblowers only qualify for protection when they report misconduct to the CEO or “other appropriate official” within the public agency, but appellate courts in that state have contradicted one another on who qualifies as an appropriate official.

Appeals courts as recently as April in Gutwill's case have sided with the lower courts and continued to rule against him. Gutwill says he’s spent more than $800,000 fighting the case. His only recourse now would be to appeal his case to the U.S. Supreme Court.

Few police officers have Gutwill’s resources, his attorney, Rick Grundy, said. And even then, the police departments and the cities they serve always have more.

“I can tell you comfortably that the Framingham Police Department spent over $1 million to bury this, and they buried one of their best officers in the process,” Grundy said.

Grundy, a former prosecutor, said Gutwill also found no refuge with Massachusetts’ civil service commission, which handles appeals in employment disputes for government and municipal workers. Grundy calls the commission a “rubber stamp” for police departments, saying they rarely side against police departments in such cases.

These defeats lead many officers to struggle with feelings of "administrative abandonment," says Jeffrey Zeizel, a Boston-based therapist who for more than two decades has treated DEA agents and police officers from departments throughout New England. Zeizel uses the term to describe what cops experience when they feel betrayed by fellow officers and the government.

“It’s a difficult thing for police officers to process, because they go out in the world and they expect violence. They expect to be shot in the back by a bank robber or a cartel member. They never expect to be shot in the back by the chief,” Zeizel said.

“They control the narrative”

Whistleblowers at times also must deal with government and civilian oversight agencies, some with conflicts of interest.

Some civilian boards, like the Office of Police Conduct Review in Minneapolis, bill themselves as “a neutral agencies,” yet the panels that evaluate internal affairs investigations include members of the police department. In other cases, the boards only review complaints that have gone through the police department first, leaving whistleblowers with no independent way to make claims of misconduct to them without alerting their supervisors.

Employment agencies can also be of little help to officers who consider themselves whistleblowers. In the Atlanta suburb of Dunwoody, now former officer Austin Handle and transport officer Brian Bolden battled two separate groups behind their retaliation claims.

Last year, they accused a department lieutenant of sending photos of his genitals to other male officers and that he had allegedly demanded they do the same in order to get lucrative overtime jobs. Handle and Bolden never received any such texts from him but said they and others in the department were bullied and targeted for minor infractions because they weren’t in the lieutenant’s inner circle.

A subsequent internal affairs investigation concluded the lieutenant had sent the texts to several officers but found no proof that officers who played along received better assignments. The lieutenant was allowed to resign.

@officer.ash

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Dunwoody police fired Handle three days later, a decision later upheld by the city manager. Investigators concluded he lied to them several times during an unrelated internal investigation into claims that he sped through his neighborhood and activated his lights and sirens to avoid being late for a shift.

Handle, then a 24-year-old officer who had amassed a large following on TikTok, later wrote to a state agency that he had used the social media platform a week before he was fired to hint that he would soon reveal how he and other officers spoke out against corruption in the department.

“For them, they are the truth. They control the narrative, and if you don't believe them or you point out that what they're saying can't be true, well then the response is always that you're not speaking facts," Handle said.

Dunwoody Police Chief Billy Grogan said he could not comment on the specifics of either case.

“We’ve done a really good job of developing a team of good officers,” Grogan said, adding that his department was created only 13 years ago and doesn’t have “the historical bad habits of a lot of older departments.”

Austin Handle (l) and Officer Brian Bolden. Handle said he was fired from Dunwoody's Police Department, and Bolden said he was targeted with bogus internal affairs investigations, after they complained about a lieutenant who was allegedly trading lucrative overtime assignments for sexual favors from other officers within the department.
Austin Handle (l) and Officer Brian Bolden. Handle said he was fired from Dunwoody's Police Department, and Bolden said he was targeted with bogus internal affairs investigations, after they complained about a lieutenant who was allegedly trading lucrative overtime assignments for sexual favors from other officers within the department.

“We’re more like a family,” he said.

But when Handle filed for unemployment, Dunwoody fought the claim, using the findings of the internal investigation against him. The employment board ruled in the department’s favor and denied Handle’s claim.

He appealed, and lost again. Finally, on his last round of appeals, the employment board in October overturned the denials, finding that Dunwoody police had produced insufficient proof to support its claim that Handle was fired for being dishonest.

Dunwoody police can still contest the law behind the ruling. Handle, who hasn't received his unemployment benefits, had to take a job at a home improvement store to make ends meet. He now works for a disaster relief agency.

Bolden, who still works for the department, is one of four Dunwoody officers who in 2020 filed claims with the U.S. Equal Employment Opportunity Commission against their department. Bolden alleges that supervisors have targeted him for bogus internal affairs investigations, including one investigation initiated by the now-resigned lieutenant, who Bolden said falsely accused him of stealing energy bars from a break room.

The EEOC sent a letter to Bolden saying the agency was suffering a backlog of cases and wouldn’t have time to address his claims, adding that he had the right to sue if he wanted.

Doing so will make him subject to the Georgia Whistleblower Act, which legal scholars as recently as last year have criticized as having been “reduced to a state of uselessness” by a series of state court decisions that have made it increasingly difficult for whistleblowers to win.

“I'm never going to be out of the woods”

When police departments decide to punish officers for speaking out, they have powerful allies in the ranks of prosecutors and across the criminal justice system that can lead to devastating results.

Lt. Kamil Warraich of the Asbury Park Police Department in New Jersey believes that is what is happening to him now, as his supervisors have spent more than two years trying to have him deemed unfit for duty.

A former Asbury Park city manager demoted Warraich, and department Chief David Keslo placed him on administrative leave in May 2019. The moves came after he made a litany of complaints, including claims that the police department had targeted minority neighborhoods, operated on a quota system and allowed officers to fail to report uses of force.

Lt. Kamil Warraich stands outside Asbury Park Police Headquarters in Asbury Park, N.J. on Saturday, Dec. 4, 2021. He returned to work on Dec. 6, ending 30 months of paid leave from the department. His superiors and local prosecutors questioned whether he was mentally fit for duty in the wake of corruption claims he made against his department.
Lt. Kamil Warraich stands outside Asbury Park Police Headquarters in Asbury Park, N.J. on Saturday, Dec. 4, 2021. He returned to work on Dec. 6, ending 30 months of paid leave from the department. His superiors and local prosecutors questioned whether he was mentally fit for duty in the wake of corruption claims he made against his department.

His bosses said they questioned whether he was mentally fit for duty because of a reference he'd made in an email about wanting to slit his wrist — an expression Warraich said he never meant literally and used only to describe his disgust with some of his fellow officers' actions.

Warraich was ordered to visit a psychologist selected by his department. According to a subsequent lawsuit he filed, the psychologist “criticized and lectured him for over an hour basically implying that however wrong the Administration is, Plaintiff (Warraich) should just stay in his place and just do his job.”

Warraich filed a complaint with the New Jersey Board of Psychological Examiners, the state agency responsible for overseeing psychologists. According to the psychologist's report, he failed her exam, although she concluded that he posed no danger to himself. Several months later, Warraich passed an independent fitness for duty examination and then passed a third exam in January.

Copy of a notice of an internal affairs investigation Lt. Kamil Warraich said he received in April. In it, Asbury Park Police officials told him that the Monmouth County prosecutor's office asked them to initiate the investigation.
Copy of a notice of an internal affairs investigation Lt. Kamil Warraich said he received in April. In it, Asbury Park Police officials told him that the Monmouth County prosecutor's office asked them to initiate the investigation.

Warraich in March wrote New Jersey Governor Phil Murphy, the state senate and state assembly judiciary committees to reiterate his misconduct claims. In it, he accused the Monmouth County prosecutors' office of helping Asbury Park cover up misconduct.

Two months later, he received a letter from his supervisors saying prosecutors asked them to start an internal affairs investigation against him for inaccuracies in the letter. After the investigation concluded, those allegations were not sustained. Warraich received another letter saying prosecutors had ordered him to undergo what would become his fourth psychological evaluation.

Monmouth County prosecutors declined to comment for this story. They referred all questions to Asbury Park Police, and Chief David Kelso did not return calls, emails and a letter seeking comment.

Chicago-based attorney Antonio Romanucci said whistleblowers face an ironic challenge when trying to prove their claims: the courts and governments are predisposed to believe law enforcement.

Romanucci, who along with civil rights attorney Benjamin Crump represents George Floyd’s family, said he always tries to get other officers as witnesses when he’s litigating a police brutality claim. But they are rarely willing to cooperate because they are afraid to spark the ire of not just their coworkers, but of prosecutors, judges and others in the system.

“Many of your local and city judges were former prosecutors, and it’s hard to shake those biases when these cases involve the same people you’ve known and worked with for years," Romanucci said. “This is not an indictment on the judges, but the judges who hear these cases can also be complicit.”

In Warraich’s case, a county judge denied a request to stay the evaluation, rejecting his attorney's arguments that prosecutors had no grounds to request the psychological exam. He took what has now become his fourth fitness for duty exam on Nov. 9.

On Dec. 1, after USA TODAY called Asbury Park Police and prosecutors to ask about Warraich’s case, an internal affairs commander told Warraich to report back to work Monday, abruptly ending his 30-month suspension.

Warraich points out that his $140,000 annual salary means that the department spent $350,000 in paid leave to keep him away since 2019, plus another six figures in legal fees as Warraich fought to keep his job.

Warraich, who is of Pakistani descent and is president of the Muslim American Law Enforcement Association, returns as the highest-ranking officer of color in the department. He told USA TODAY he doesn't consider his return to work a victory, just a return to a job he feels was unjustly taken from him with no consequences for the people who put him on leave.

"I mean, they've tried everything and they were very creative," Warraich said. "They wasted time, they wasted money. I'm never going to be out of the woods."

USA TODAY reporters Brett Murphy and Gina Barton contributed to this story.

Daphne Duret is a reporter on USA TODAY's investigative team and a 2021-22 Knight-Wallace Reporting Fellow at the University of Michigan. Contact Daphne at dduret@gannett.com, @dd_writes, by signal at 772-486-5562.

This article originally appeared on USA TODAY: Cop whistleblowers forced to stand alone against courts, other groups