Judge Rules Challenge to NCIS Can Move Forward

SAN DIEGO – In a path-breaking First Amendment retaliation case brought by the ACLU of San Diego & Imperial Counties, a district court judge denied the government’s request to dismiss charges against Naval Criminal Investigative Service and Marine Corps officers who are accused of retaliating against a defense investigator.

Carolyn Martin, a former Marine and federal contract investigator is challenging the NCIS for retaliating against her because she is an effective defense investigator for Marines and sailors in courts-martial and other proceedings.

Judge William Q. Hayes ruled that Martin sufficiently proved that NCIS and Marine Corps officers violated the First Amendment’s restrictions on retaliation for protected speech for the case to proceed.

Martin, who served in the Marine Corps for fourteen years in intelligence and administrative capacities and now defends Marines and sailors in courts-martial, was seized for hours without justification, harassed at her home, and falsely “charged” with a federal felony. A staff judge advocate unlawfully barred her from the courtroom and defense counsel offices at the Marine Corps Recruit Depot.

The court ordered that Martin’s retaliation claim for damages survives in spite of government arguments that she had no First Amendment interest in her work as a defense investigator. “This order is a vindication of the importance of criminal defense investigators in the courtroom,” said David Blair-Loy, legal director for the San Diego ACLU. “Even more broadly, it is a vindication of all courtroom speech as a vital, protected First Amendment activity.”

Blair-Loy said the judge’s order should also serve as a repudiation of the notion that government agents can squelch dissent or criticism by interfering with First Amendment activity. Without an order that keeps alive the possibility of damages, there is nothing to compel government agents to refrain from similar intimidation tactics in the future. “We need to hold the government accountable when it violates the U.S. Constitution,” Blair-Loy said.

Judge Hayes also denied the government’s request to moot Martin’s claim against the NCIS and MCRD denying her access to court. The government had argued that this issue was moot because they said Martin would no longer be barred from going into courtroom at MCRD. But the court said the issue is still live and presents matters that need to be decided on the merits.

The San Diego ACLU suit claims that the NCIS retaliated against Martin for First Amendment-protected speech, including engaging in factual investigation and analysis, interviewing clients and witnesses, communicating her findings to her clients and defense attorneys, testifying in proceedings, and related activities, and for interfering with her access to court proceedings. The suit calls for general, compensatory and punitive damages against several NCIS agents, a declaration that the defendants’ conduct is unlawful, and for Martin to be granted injunction against further unlawful activity, as well as costs and fees incurred in this litigation.

This case now moves into the critical discovery phase.