Sean DeCrane

Cincinnati, OH – In a major win for free speech and the public's right to know about government misconduct, the U.S. Court of Appeals for the Sixth Circuit rejected former Cleveland Assistant Safety Director Edward Eckart's claim that he is entitled to “qualified immunity” from being sued and tried for First Amendment retaliation. The decision is a significant win for public employees’ First Amendment rights and journalists’ access to public employees as sources.

Eckart had sought immunity from the First Amendment–retaliation lawsuit brought against him by Sean DeCrane, a now-retired Cleveland Division of Fire battalion chief. The complaint alleges that Eckart engaged in a years-long retaliatory campaign against DeCrane driven by Eckart’s mistaken belief that, in 2013, DeCrane had leaked to the media that then-Cleveland Fire Chief Daryl McGinnis had failed to meet the minimum training requirements for his position.

McGinnis was appointed by Mayor Frank Jackson at Eckart’s recommendation. Failing to maintain his training meant that McGinnis was unfit to be a firefighter, much less chief.

Once McGinnis's deficiency came to light, the chief was relieved of duty and he soon retired.

As the Sixth Circuit’s opinion chronicles, the alleged retaliation campaign included denying DeCrane promotional opportunities including the chance to be fire chief, an unfounded investigation and misconduct charges along with an intentional delay in exoneration, and humiliating DeCrane by shutting down his retirement party.

The issue on appeal focused on whether the alleged speech—(informing the media of a fire chief’s lack of required training—was protected by the First Amendment—and, if so, whether that point was clearly established in the law so as to defeat Eckart’s claim to qualified immunity from being sued.

The Sixth Circuit answered “yes” to both of those questions.

The 21-page opinion presents a guidebook for how First Amendment principles protect public employees’ speech. The court opened its analysis by acknowledging the Supreme Court’s decision in Heffernan v. City of Paterson, which held that public officials still face liability for First Amendment retaliation even if they, as Eckart did, make a mistake about the speaker’s identity.

And, in another nod to precedent, the Sixth Circuit explained that “[t]he Supreme Court has made clear that employees do not speak “on the job” simply because they speak about the job.” (Citing to Lane v. Franks, 573 U.S. 228, 239–40 (2014).) Instead, public employees’ speech related to their jobs “holds special value precisely because those employees gain knowledge of matters of public concern through their employment.” (Quoting from Lane.) The Court further considered the fact that the leak was made outside the chain of command to a journalist, making it more soundly protected by the First Amendment.

In reviewing the case’s facts, the Sixth Circuit noted that many facts are disputed, which means that Eckart is not entitled to summary judgment and a jury will have to resolve the case.

One example concerned the testimony of Patrick Kelly, who had replaced McGinnis as Cleveland’s fire chief. As the opinion explains, Kelly gave sworn testimony accusing Eckart of offering to drop an effort to outsource firefighter training if then-chief Kelly agreed to remove DeCrane as director of the city’s Fire Training Academy.

The opinion then noted that Kelly flipflopped in a second declaration to dispute his own prior testimony. (Though not a party to the case, Kelly is jointly represented as a witness by Eckart’s Zashin & Rich law-firm attorneys, hired by the City of Cleveland.)

“Passing head fake at a potential legal issue.”

The opinion characterized one of Eckart's arguments as making “a passing head fake at a potential legal issue” after observing that the argument “flouts precedent” and “has a fatal jurisdictional problem.”

Five years after his suit was filed, DeCrane will now at long last have his day in court before a jury. The Sixth Circuit’s decision affirmed the Northern District of Ohio’s earlier decision to deny Eckart qualified immunity, green lighting the case for trial in that federal district court. (Eckart is now vice president of the Downtown Cleveland Alliance.)

Subodh Chandra, DeCrane’s lead counsel, said, “The Sixth Circuit's opinion reinforces the right of public employees to speak publicly about matters of public concern like government corruption or incompetence. Sean DeCrane can’t wait to present his case to a jury and hold Eckart accountable for violating the Constitution.”

The case is captioned DeCrane v. Eckart, et al., Sixth Circuit Case No. 20-3620; U.S. District Court for the Northern District of Ohio Case No. No. 1:16-cv-02647.

Chandra, Donald P. Screen, and Patrick Haney of The Chandra Law Firm LLC represent DeCrane.

Chandra Law has experience obtaining justice for victims of First Amendment retaliation, including public employees. The firm also helped pioneer work in holding individuals and companies accountable for civil liability for criminal acts, securing the two leading Ohio Supreme Court opinions on the topic. If you think that your rights have been violated, you may contact us to discuss your options.

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