While half of Scott Milliman’s court case counts were dismissed by Federal Judge Frederick Kapala, three remain.

Two are based on unconstitutional violations of former McHenry County Sheriff’s Deputy Scott Milliman’s rights of free speech under the First Amendment.

To put it in the Judge’s words, “This court finds that Milliman’s complaint plausibly sets out a claim for relief as to the first element of the Connick-Pickering test [whether “the speech in question addresses a matter of public concern”].

“The context of Milliman’s speech centered around illegal actions allegedly being performed by the McHenry County Sheriff and his deputies. The content of Milliman’s speech, then, unquestionably concerns matters of public concern.”

As the case states, “Speech that accurately exposes official impropriety or corruption may certainly be described as highly critical of the officials it targets, yet it has generally been accorded the greatest level of First Amendment protection.

“The context of the speech, at least alleged in the complaint, was that Milliman was subpoenaed to testify in a deposition and…his speech was mandatory and required to be truthful under penalty of perjury,” the decision continues.

“There is nothing in the instant case to suggest that Milliman has had any personal stake in the accusations against Nygren and other deputies.

“Finally, in a verbal deposition provided under subpoena…courts typically consider [it] a protected form of expression.

“Accordingly based on the allegations in the complaint which this court is required to accept as true at this stage the complaint plausibly sets out a constitutional violation.”

Judge Kapala lays out the six elements of the “Pickering” case balancing test:

1. whether the speech would create problems in maintaining discipline or harmony among co-workers
2. whether the employment relationship is one in which personal loyalty and confidence are necessary
3. whether the speech impeded the employee’s ability to perform (his) responsibilities
4. the time, place and manner of the speech]
5. the context within which the underlying dispute arose
6. whether the speaker should be regarded as a member of the general public

“Defendants argue that, because Milliman made particularly vicious claims in his deposition testimony–including accusing Nygren of solicitation of two murders and human trafficking–and that police agencies are given more leeway to discipline employees given the rigid structure of police command…that his court should set aside the fact that there is little on the record to perform the Pickering balance test and dismiss the case nonetheless.

“The court notes, however, that the fact Milliman made potentially damning accusations against Nygren cuts both ways.

“In his complaint, Milliman alleges that all of his deposition testimony was truthful.

“Accepting that allegation as true, as the court is required to do at this point, Milliman’s exposure of murderous and felonious activities carried out by the McHenry County Sheriff and his deputies would receive extra protection under the First Amendment as being of particular concern to the general public and vital to informed decision-making.

“Accordingly, although those allegations may be extra disruptive to police discipline, truthful allegations of the same behavior would illuminate a serious deficiency in a public official of significant authority and trust.

“Nevertheless, there are still many issues in this case that are not yet sufficiently developed to permit the court to do any intelligent analysis of the factors set out in Gustafson.

“Accordingly, because the complaint sets that Milliman’s speech is a matter of public concern and because it is not possible on this record to determine whether the employer interest in maintaining discipline outweighed Milliman’s interest in free speech, the court finds that the complaint plausibly alleges a constitutional violation.”

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Part one is here.

Article two is here.

Article three is here.