Legal Lesson of the Month: Responder Speech and the Pickering Test

EMS can be full of interesting and tricky legal scenarios. While you can’t have an attorney ride with you, it behooves providers to have at least some familiarity with the principles, precedents, and major issues of EMS law. To that end EMS World is pleased to offer the EMS Legal Lesson of the Month.

These cases are presented by prominent attorneys in the EMS field. This month’s comes from Larry Bennett, program chair for fire science and emergency management at the University of Cincinnati. Bennett’s department publishes a monthly Fire & EMS and Safety Law newsletter; subscribe to that by e-mailing Lawrence.bennett@uc.edu or read the latest edition here.

Case: Oren Barzilay, President of Uniformed EMTs, Paramedics, and Fire Inspectors, Local 2507, et al. v. City of New York, et al.

Decided: July 2022

Verdict: US District Court Judge Lewis J. Liman, Southern District of New York, held the plaintiffs were “entitled to a jury trial on their §1983 claims for First Amendment retaliation against all defendants and on their related free-speech claim under the New York State Constitution against the city… There is credible evidence that suggests defendants restricted or suspended the individual plaintiffs for a permissible reason, but there is also evidence from which a reasonable jury could find the defendants did so simply because they were employees who engaged in protected speech.”

Facts: Commencing in 2019, Local 2507 launched a publicity campaign to address the wage disparity of its members and the difficulties faced by union members in their performance of EMS services in and around New York City. With the onset of the COVID-19 pandemic in March 2020, the campaign expanded to address the stress placed on members working during the pandemic and the lack of personal protective equipment available to EMS during the pandemic.

At the request of [union president] Barzilay, [paramedics Megan] Pfeiffer and [Elizabeth] Bonilla agreed to participate in a series of press videos and articles in April 2020 about the COVID-19 pandemic and how it was being handled by the FDNY. [Paramedic Alexander] Nunez also agreed to be interviewed by the Australian Broadcasting Corp. (Aus. BC) at the request of [executive board member John] Rugen. In early April 2020 Local 2507 received a request from a reporter at Aus. BC for help in reporting on the workday burdens of FDNY EMTs and paramedics. The reporter asked for help following FDNY EMTs and paramedics at work, and Local 2507 agreed to provide that assistance.

On April 20, 2020, Aus. BC published a video/article entitled “Behind Enemy Lines New York”… Pfieffer and Nunez were featured in the video that accompanied the article; the video showed EMS members walking down a residential hallway and entering an apartment, with Pfeiffer and Nunez in their EMS uniforms performing patient care… The video also showed [a] patient being removed from the residential building and placed into an ambulance and Nunez making a telephone call, and it was accompanied by an overlay text describing the patient, the patient’s physical condition, the interior of the apartment, the treatment being provided to the patient, and the reporter’s interpretation of the events.

On April 26, 2020, shortly after the referrals [to FDNY’s Department of Investigations], Rugen, Pfeiffer, Nunez, and Bonilla were notified that they were restricted from performing patient care/field-related duties and from driving any FDNY vehicles until further notice… Upon receiving notification by DOI that it would not be investigating the matter, [FDNY Assistant Commissioner Carlos] Velez directed [department attorney Bianca] Kodzoman to lift the restriction placed on Nunez, Bonilla, and Pfeiffer… On June 17, 2020…the restrictions on Pfeiffer, Nunez, and Bonilla were lifted and they were informed they could resume performing patient care/field related duty and driving department vehicles.

Key quote: “Under the Pickering balancing test ‘defendants may…escape liability if they can demonstrate that…the plaintiff’s expression was likely to disrupt the government’s activities and that the harm caused by the disruption outweighs the value of the plaintiff’s expression.’

“For much the same reasons as Rugen’s speech was on a matter of public concern, so was the speech of Nunez, Pfeiffer, and Bonilla. They each spoke about the emotional toll that responding to the pandemic was having on their lives. They discussed the fear they faced about potentially passing on the virus to their loved ones and how that has caused them to adjust their behaviors. And they spoke about how people were reacting to COVID illnesses and about their views on individuals staying home to “ride out” their illnesses instead of going to the hospital with a mild case of COVID. The speech addressed the general impact of COVID on emergency workers. As explained with respect to Rugen, whether their speech was motivated by personal grievances as opposed to a desire to educate the community about a matter of public concern is not dispositive, as ‘a person who is “motivated by a personal grievance” can still “be speaking on a matter of public concern.”’”

Legal lesson: The US Supreme Court’s Pickering “balancing” decision has led to lots of litigation about the right of EMS, fire, and police officers to go public with concerns.

Learn more about the Pickering test at https://www.mtsu.edu/first-amendment/article/1608/pickering-connick-test.