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A former interim police chief from Neillsville, Wis., lost his free-speech appeal, as the 7th U.S. Circuit Court of Appeals determined that his speech criticizing police department leadership was unprotected employee speech rather than protected citizen speech.
Patrick Fehlman served as the Neillsville Police Department’s interim chief for most of 2019. In the beginning of 2020, the city hired James Mankowski as the new police chief and Fehlman returned to his prior position as an officer.
Over several months, Fehlman raised concerns about management of the department to Mankowski, only to be rebuffed. Fehlman and others then sought a meeting with the city’s Police and Fire Commission. There, Fehlman raised numerous concerns, including that Mankowski instilled fear in his officers, verbally abused suspects, and prioritized speeding violations over allegations of child abuse at a school.
When Mankowski learned of these complaints, he yelled at Fehlman, took away his work credit card, and threatened him and other officers with insubordination. Fehlman resigned shortly thereafter and sought employment with the Clark County Sheriff’s Department.
Fehlman sued Mankowski in federal court, alleging that he had retaliated against him for his protected speech. A federal district court dismissed the lawsuit, finding that Fehlman’s critical speech was official-job duty speech not entitled to protection under the U.S. Supreme Court’s decision in Garcetti v. Ceballos (2006). In that decision, the Court ruled that when employees engage in official, job-duty speech, they speak as employees, not citizens, and are not entitled to any First Amendment protection.
Fehlman appealed the district court’s decision, emphasizing that his speech to the Police and Fire Commission was not part of his official job duties. However, a three-judge panel of the 7th Circuit affirmed the lower court in its July 26, 2023, decision in Fehlman v. Mankowski.
The 7th Circuit panel reasoned that “Fehlman’s speech to the PFC [Police and Fire Commission] was made in his role as police officer.” The panel said the PFC was in Fehlman’s chain of command and, thus, his criticisms of Mankowski were more of an internal grievance.
The panel concluded that Fehlman spoke as a public employee rather than a citizen.
David L. Hudson Jr. teaches First Amendment law and Constitutional Law classes at Belmont University College of Law. He is the author, co-author, or co-editor of more than 50 books, including The Constitution Explained: A Guide for Every American (Visible Ink Press, 2022) and The First Amendment: Freedom of Speech (Thomson Reuters, 2012).
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