Police Sergeant's Statements To Reporter Concerning Alleged Corruption In The Department Involved A Matter Of Public Concern

Ben Markos was a police sergeant for the City of Atlanta, Texas. On February 25, 2001, Markos reported to Captain Steve Mericle, an internal affairs officer, that Officer Richard Dyer had used excessive force while arresting Ben Wiggins the previous night. Chief Mike Dupree ordered Mericle to investigate the incident. Mericle eventually concluded that Dyer had used excessive force but that Markos and the other officers present were innocent of any wrongdoing.

On October 15, 2001, Wiggins sued the City of Atlanta and several officers, including Markos and Dyer, for damages sustained during the incident. Markos informed Dupree that he was concerned about the officers' reputations and that he hoped that Dupree would defend them. Two days later, Dupree distributed a memo to all police department employees advising them "not to discuss this case with ANYONE except for attorneys hired by Texas Municipal League for our defense."

Prior to the memo's circulation, Markos had spoken to a reporter at the Atlanta Citizens Journal off the record. After the memo's circulation, on October 21, 2001, the Journal published an article on the Wiggins incident stating that "Markos, when contacted by the Journal this week, said that he had been ordered by the APD Chief of Police Mike Dupree 'not to talk to anyone' regarding the incident." On October 24, the Journal published another article, entitled "Wiggins incident: Did police cover up?", that contained several quotes from Markos. Although Markos was initially reluctant to talk, he changed his mind and granted an interview "because my reputation dictates how well I can do my job. With what was in the paper and me not being able to defend myself since the city seems to choose not to defend any of the officers, I have no choice." In that article, Markos made statements defending some of his fellow officers and criticizing Dyer's actions. Markos also stated that Mericle had asked him to file two incident reports and that Dyer wanted "one with what Richie Dyer did and one without what Richie Dyer did." Markos said that he responded that he would file two reports but that they would both say the same thing. The article further quoted Markos as saying, "In 20 years I've never been asked to do two reports on anything I've ever done--especially leaving anything out of one and putting it in the other." The Journal article also reported that Markos had in fact submitted two identical reports, both detailing Dyer's actions.

After the article ran, Dupree suspended Markos with pay while investigating Markos' insubordination in agreeing to speak to the reporter for the Journal. As punishment, Markos was permanently demoted from Sergeant to Patrol Officer, placed on disciplinary probation for ninety days, and suspended without pay for five days. After the probationary period, Markos was fired; the stated reason for this firing was Markos' failure to issue traffic tickets.

Markos sued the City of Atlanta, Dupree, and Michael Aherns, the City Manager of Atlanta, in January 2002 claiming that he was retaliated against for exercising his First Amendment right to free speech. The defendants moved for summary judgment on this claim arguing that Markos' speech did not involve a matter of public concern. The district court agreed with the defendants and granted summary judgment. Markos appealed, and the 5th Circuit reversed, holding that Markos’s statements to the Journal reporter were a matter of public concern.

Markos v. City of Atlanta, Texas

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The 5th Circuit Court of Appeals’ jurisdiction includes Louisiana, Texas and Mississippi.

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