Ninth Circuit Decision Reaffirms The Difficulty Members Of Law Enforcement Can Face In Asserting First Amendment Claims

Posted by David Urban on August 10, 2012

Police Cars.jpgUpdate: On December 11, 2012, the U.S. Court of Appeals for the Ninth Circuit decided to re-hear Dahlia v. Rodriguez en banc. Accordingly, public agencies can no longer rely on the three-Judge panel opinion discussed below. A panel of eleven Judges will re-hear the appeal. The opinion of that en banc panel of the Ninth Circuit will likely prove very important for the First Amendment rights of peace officers in California.

Original Post: This week, the U.S. Court of Appeals for the Ninth Circuit determined that a Burbank police detective could not assert a First Amendment retaliation claim based on his allegedly having complained about abusive interrogation tactics. In Dahlia v. Rodriguez, the Court held that the alleged speech of plaintiff Angelo Dahlia was made pursuant to his “official duties” as a member of law enforcement and accordingly that the speech could not have First Amendment protection. In doing so, the Court applied the existing rule of the Ninth Circuit that police officers in California inherently have, as part of their “official duties,” the duty appropriately to report illegal conduct by anyone, including their own colleagues and superiors. The United States Supreme Court has previously held, in the landmark case Garcetti v. Ceballos, that public employee speech made pursuant to “official duties” does not have First Amendment protection, and cannot form the basis for a retaliation claim. Dahlia confirms that, for police in particular, the scope of “official duties” actually includes much of what can form the basis for a whistleblower claim.

The Supreme Court’s reasoning behind its “official duties” test in Garcetti was that, if a public employee speaks in his or her capacity as an “employee” rather than a “citizen,” the employee is engaging in speech that the government has itself created or “commissioned” by employing the individual in the first place. In the Court’s view, it is improper for a public employee to have First Amendment rights in speech which essentially “owes its existence” to the government’s employment of the individual.

In Dahlia, the plaintiff police detective alleged that he had complained to his superiors for months about supposed abusive and unlawful conduct at the Burbank Police Department, including supposed improper conduct during interrogations. Dahlia’s complaint alleged that, four days after he disclosed details on this supposed misconduct in interviews with the Los Angeles Sheriff’s Department, the Burbank Police Department placed him on administrative leave pending investigation. He alleged that placing him on leave was retaliation for his protected speech, and named the City, its Chief of Police, and several Lieutenants and Sergeants as defendants in his lawsuit. Most of the defendants moved to dismiss, and the District Court, even assuming the facts in Dahlia’s complaint to be true, ruled in favor of defendants on the First Amendment claim.

The Ninth Circuit affirmed. Judge Wardlaw, writing for a unanimous three-judge panel, held that Dahlia could not assert a First Amendment retaliation claim because his speech at issue was part of his “official duties” as a police officer. The Court held that, in the Ninth Circuit, “California police officers are required, as part of their official duties, to disclose information regarding acts of corruption.”

Judge Wardlaw noted that this rule was created in a prior Ninth Circuit case Huppert v. City of Pittsburg, which the Court now was required to follow. In Huppert, the prior Court had determined that a police officer’s disclosures of alleged department corruption to outside agencies fell within “official duties” because California law imposes broad duties on the police to report illegal conduct. The Huppert decision relied on a 1939 California Court of Appeal case named Christal v. Police Commission, which set forth in expansive terms the reporting duties (and by implication “official duties”) of California police officers. The 1939 Christal case had described:

The duties of police officers are many and varied. Such officers are the guardians of the peace and security of the community, and the efficiency of our whole system, designed for the purpose of maintaining law and order, depends upon the extent to which such officers perform their duties and are faithful to the trust reposed in them. Among the duties of police officers are those of preventing the commission of crime, of assisting in its detection, and of disclosing all information known to them which may lead to the apprehension and punishment of those who have transgressed our laws. When police officers acquire knowledge of facts which will tend to incriminate any person, it is their duty to disclose such facts to their superiors . . . . It is for the performance of these duties that police officers are commissioned and paid by the community, and it is a violation of said duties for any police officer to refuse to disclose pertinent facts within his knowledge . . . .

The Dahlia Court described that it had no choice but to apply Huppert’s expansive test for “official duties” to bar Dahlia’s claim. (The Huppert case was decided by three different Ninth Circuit Judges, but subsequent three-judge panels are bound to follow the case.)

Courts typically write opinions that emphasize the soundness of the rule they are applying. One very unique feature of the Dahlia opinion is that, at the same time it applied the Huppert rule, it stridently criticized it. The Court made clear it applied the rule from Huppert only because it was required to do so under principles of precedent. The Dahlia opinion points out that Huppert’s “generic laundry list” of police officer duties was “lifted” from a “single California Court of Appeal decision from 1939,” the Christal case quoted above, decided before the U.S. Supreme Court set the current framework for evaluating public employee First Amendment claims. The Dahlia opinion concludes: “We feel compelled, like the district court, to follow Huppert, despite our conclusion that it was wrongly decided and unsupported by the sole authority it relies upon.”

There is a fair chance a call will be made for en banc review by a larger panel of the Ninth Circuit (which has the ability to overrule Huppert), and also a possibility the U.S. Supreme Court will see fit to intervene to clarify “official duties” in the context of police officer free speech rights. Thus, although the Dahlia case basically only reaffirms a prior rule of free speech law, it is certainly a decision to watch in terms of possible further developments in this area of the law.

Finally, the Dahlia case made one ruling favorable to police officers suing for retaliation. The District Court had found the plaintiff’s First Amendment claim to lack merit for the alternative reason that mere placement of an officer on administrative leave was not an “adverse employment action” that could support a First Amendment retaliation claim. The Ninth Circuit disagreed. It held that “under some circumstances, placement on administrative leave can constitute an adverse employment action.” The Court described that it was premature to make the determination in this particular case and that it would need more information than was pleaded in the complaint. The Court observed that even if Dahlia had been placed on paid rather than unpaid leave, the standard for an adverse employment action “may very well” be met in Dahlia’s case given the change in working conditions and loss of responsibilities, among other things, that the administrative leave entails.

Officers Shooting Pepper Balls to Disperse Partying College Students Are Not Entitled To Qualified Immunity

Posted by Guest Author on July 26, 2012

Crowd.jpg

This guest post was authored by Judith S. Islas

Last November UC Davis police donned in riot gear used pepper spray on a group of student protestors at an “occupy” movement demonstration held on the university campus.  That pepper spray incident was captured on video. It triggered an internet and media frenzy, multiple investigations and lawsuits, and became the topic of a vigorous national debate and UC-wide policy review on the use of force by campus police on student protestors.  While these pepper spray lawsuits are still in their early stages, earlier  this month, the Ninth Circuit U.S Court of Appeals issued a decision in another Davis case, this one involving “pepper balls,” an encapsulated version of pepper spray.  This initial pepper spray case, Nelson v. City of Davis, is bound to have a significant impact as the November 2011 pepper spray cases, wind their way through the courts.

The pepper ball incident involved in the court decision occurred during the UC Davis annual “Picnic Day” festivities in 2004, when City and campus police tried to disperse a crowd of about 1,000 students congregated at an apartment complex near campus for “the biggest party in history.”  After unsuccessful efforts to break up the party, and observing an individual rocking a car, underage drinking, bottles breaking, scores of illegally parked vehicles, and being asked by the apartment owner to evacuate the partygoers, a group of 30 to 40 police officers in riot gear assembled at the apartment complex.

What happened next triggered the lawsuit.  Upon entering the apartment complex, the officers formed a skirmish line and moved through the crowd directing partygoers to disperse, but the crowd did not disband.  Unable to control the huge crowd or obtain compliance with their exit orders, three officers shot pepper balls towards a group of 15 to 20 students who were near the exit. One pepper ball accidentally struck Timothy Nelson in the eye.  He collapsed and was temporarily blinded.  Later, students in the group of 15 to 20 near the exit claimed they were trying to leave the party, but could not because the police were blocking the exit path. They claimed they raised their hands to signal compliance and asked the officers what they should do, but the officers did not respond. The officers agreed that it was extremely difficult to communicate due to the raucous noise level, the huge crowd, and their protective headgear. They claimed this prompted their use of pepper balls. As a result of the pepper ball hitting him in the eye, Nelson suffered permanent visual impairments, underwent multiple surgeries, and had to withdraw from UC Davis after losing his athletic scholarship.

Nelson sued the officers, claiming their conduct violated the Fourth Amendment prohibition on unreasonable seizure.  The officers claimed they did not unlawfully seize Nelson, but if they did, they were entitled to qualified immunity, which shields public officials from damages in a civil suit.

The Court first found the officers unlawfully seized Nelson.  Despite the officers’ explanations that they did not personally target Nelson and did not intend the pepper balls to hit his eye, the Court found that Nelson had become immobilized by police conduct and, therefore, had been seized.  Next, the Court evaluated whether the seizure was reasonable and, therefore, lawful.  The Court focused on: (1) whether the use of pepper balls is more than a minimal intrusion, because it causes immediate and uncontrollable pain; (2) whether the use of pepper balls to disperse the crowd violated both Commission on Peace Officer Standards and Training (POST) guidelines and the officers’ own training directives; and (3) whether Nelson and his friends were engaged in or were arrested for a crime based on their conduct at the apartment complex.  If they were not, this would have, significantly reduced any justification for use of force. The Court found the use of pepper balls was not reasonable and, therefore, Nelson’s seizure was unlawful.

The Court next analyzed the officers’ claim of qualified immunity. Qualified immunity is an important protection for public officials to limit their susceptibility to suit for damages for performing their duties as public officials.  However, qualified immunity only protects public officials from liability for damages when their conduct does not violate clearly established statutory or constitutional rights; it applies only where the violation of the constitutional right was not clearly established at the time it occurred.   In analyzing whether the officers were entitled to qualified immunity, the Court acknowledged that, in 2004 when the incident occurred, there was no binding precedent specifically involving the use of pepper balls.  But, the Court noted, “officials can be on notice that their conduct violates established law even in novel factual situations” and an officer is not entitled to qualified immunity on the ground the law is not clearly established every time a novel method is used to inflict an injury.  The Court held that, to show the Constitutional violation was clearly established, Nelson did not need to establish the officers’ specific conduct had previously been declared unconstitutional, but only that the unlawfulness was apparent given preexisting law.  The Court then concluded that, at the time of the pepper ball incident in 2004, the law was clearly established on the use of pepper spray and concussive force, which are the combined ingredients that make a pepper ball.  Therefore, it was clearly established that the officers’ conduct violated Nelson’s Fourth Amendment rights.  Based on that, the Court rejected the officers’ plea for qualified immunity.

This case, paves the way for Nelson to obtain damages against the officers involved in the pepper ball incident.  The case also promises to be of critical importance as students injured in the November 2011, pepper spray incident at UC Davis seek damages from the officers who issued the orders and shot pepper spray in that incident.  Stay tuned…

What Does The Supreme Court's Ruling In US v. Jones Mean For GPS Tracking By Employers?

Posted by Elizabeth Arce on January 31, 2012

GPS.JPGLast summer we reported that an employer may under California law use GPS devices to track employer owned or leased vehicles.  We recently revisited this issue in light of the U.S. Supreme Court’s unanimous ruling in United States v. Jones.   Although Jones does address the use of GPS devices to track vehicles, the holding will not likely impact an employer’s ability to place Global Positioning System (GPS) devices on its own vehicles to track employee movement. 

In Jones, the government obtained a warrant to attach a GPS device to a vehicle registered to respondent Antoine Jones’ wife.  However, Jones was the exclusive driver of the vehicle.  Although the warrant authorized the device’s installation on the undercarriage of the vehicle in Maryland within 10 days, the government installed the GPS on the 11th day and in the District of Columbia.  The government used the device to track the vehicle’s movements for the next 28 days and the data collected from the device was used to convict Jones of multiple drug related charges.  

The Supreme Court ruled that the government’s attachment of a GPS device to a vehicle without a warrant, and its use of that device to monitor the vehicle’s movements, violated the Fourth Amendment to the U.S. Constitution.  The Court’s ruling is contrary to the result in United States v. Pineda-Moreno, where the U.S. Court of Appeals for the Ninth Circuit found that the government did not violate the Fourth Amendment when it placed a GPS tracking device on the undercarriage of a suspect’s car without a warrant. 

There are at least two reasons why the holding in Jones will likely not affect a California employer’s ability to use GPS tracking.  First, Jones examined the use of GPS in a criminal investigation, not in an employment setting.  Second, it is already a crime under California law to use an electronic tracking device to determine the location or movement of a person unless the vehicle is owned or leased by the individual or employer doing the tracking.  Thus, if the employer owns or leases a vehicle, the employer may use GPS or similar electronic tracking devices to monitor the location or movement of its employees in that vehicle.  

However, we recommend that employers who wish to use GPS should only do so when they have a legitimate business reason to track, and they should give employees notice that they will be monitored.  It is a good practice for employers to implement a written policy that informs employees that their usage of employer owned or leased vehicles will be monitored.  The policy should also discuss the business reasons for monitoring such as measuring productivity, locating stolen vehicles and ensuring that employees are following their assigned routes. 

Finally, at least one Superior Court has ruled in an unpublished decision that a public employer, Metrolink, was not required to meet and confer with an employee bargaining unit before installing two inward-facing cameras in all of its locomotive cabs for purposes of monitoring the activities of its engineers.  Although public employers have a management right to use devices, such as electronic tracking technology, to monitor employees, they must negotiate the effects of the policy, such as discipline. 

An in depth discussion on the use of GPS tracking devices can be found in LCW’s workbook on Privacy Issues in the Workplace.  The workbook also contains sample policies regarding electronic device tracking.  LCW can assist employers with drafting a policy.

"Last Chance Agreement" Failed To Contain Waiver Of "Skelly" Rights

Posted by Guest Author on September 29, 2011

This guest post was authored by James Oldendorph

 

Signing-Document.JPGOn August 3, 2011, the Ninth Circuit U.S. Court of Appeals held that a public employee had not knowingly waived his right to a due process pre-termination hearing by signing a “last chance agreement,” and that the public employer violated his due process right by not providing such a hearing prior to termination.

In Walls v. Central Contra Costa Transit Authority, a  public employee was terminated January 27, 2006 but then reinstated  March 2, 2006 pursuant to a last chance agreement which provided that any “non-compliance with the stipulations [of the agreement] w[ould] result in . . . immediate and final termination.”  Very soon thereafter, Walls violated the last chance agreement by incurring an unexcused absence from work.  He was then summarily terminated without any sort of pre-disciplinary procedure.  Walls then filed suit, alleging that his termination was improper, in part, because it was not preceded by a Skelly meeting.  The employer, in response, alleged that the employee was not entitled to any Skelly rights because the last chance agreement used language that demonstrated the employee’s status had been altered to “at-will,” thereby divesting him of any procedural due process rights.  The Court of Appeals disagreed.

The Court found, first, that it was not clear that the phrase “immediate and final termination” used in the context of a last chance agreement necessarily signaled that the termination would take effect without a hearing or process of any kind.  Second, the Court found that it was certainly not clear Walls knew and understood when he signed the last chance agreement that he was waiving his right to due process in the form of a pre-termination hearing.  Neither did he acknowledge or understand that he would thereafter be treated as an at-will employee. 

While recognizing that “[a] public employee may waive his right to due process,” the Court cautioned that “federal courts ‘indulge every reasonable presumption against waiver of fundamental constitutional rights’ and ‘do not presume acquiescence in the loss of fundamental rights.’” As a result, the Court found that the agreement’s failure to provide expressly that the employee would waive any Skelly rights and/or rights to a pre-termination hearing implied that those rights were not waived and remained intact. Accordingly, the Court found that the employer in fact violated the employee’s due process rights under the United States and California Constitutions when it terminated him without any procedural due process.

This case stresses the importance of public employers correctly drafting a “last chance” settlement agreement, i.e., one which clearly identifies the specific rights that are to be waived by the employee and one which specifies the consequences of further misconduct.

Fifth Circuit Rules Cheerleader's Free Speech Claims Were Not Frivolous

Posted by Morin Jacob on September 20, 2011

On September 12, 2011, in John Doe and Jane Doe v. Silsbee Independent School District, the U.S. Fifth Circuit Court of Appeals in Texas ruled that a high school student will not be required to pay attorney’s fees to the school district for her First Amendment free speech claims, but she will be required to pay attorney’s fees for the claims the Court of Appeals upheld as frivolous. 

School-Spirit.pngThis controversial case has been in the spotlight since 2008.  In October 2008, H.S., a cheerleader at Silsbee High School, was allegedly sexually assaulted by two classmates, Bolton and Rountree, at a private party.  The case went to a grand jury.  The grand jury declined to indict either Bolton or Rountree. 

After the grand jury’s refusal to issue indictments, H.S. refused to cheer for Bolton, a Silsee basketball team member, during a varsity game.  H.S. alleged that she symbolically protested and expressed herself by folding her arms or leaving the rest of her squad when Bolton shot free throws.  Following H.S. protest, the superintendent and principal of the high school allegedly pulled H.S. aside and told her to cheer for Bolton or go home.  H.S. refused to cheer for Bolton, and she was kicked off of the cheerleading squad for her refusal to do so.  

H.S. sued, alleging multiple civil rights violations, including being retaliated against for exercising her free speech, due process and equal protection rights.  H.S. lost her case.  As a result, defendants sought their attorney’s fees, alleging that H.S.'s lawsuit was "patently frivolous, unreasonable, vexatious, and utterly without foundation."  The defendants were awarded attorney's fees totaling $38,903.64.

The Court of Appeals reviewed whether the award of attorney’s fees was appropriate.  The Court largely sided with the District Court that had initially awarded the defendants fees.  The Fifth Circuit upheld the lower court’s ruling that the due process and equal protection claims were frivolous and ruled that H.S. had failed to allege sufficient facts to support those claims. 

However, the Court  ruled that H.S. First Amendment claim, where she alleged the high school violated her free speech rights after kicking her off the cheerleading team in retaliation for her symbolic protest, was not frivolous.  The Court found that the defendants had kicked H.S. off the cheerleading team because she refused to cheer.  The question was whether H.S. silent protest was speech protected by the First Amendment.

Although H.S. free speech claim was unsuccessful, the Court of Appeals believed that her argument was not frivolous.  The Court stated that, even if there were a low chance that the audience would understand her protest, H.S. reasonably could have argued that the audience knew the background of her alleged sexual assault, and would have thereby understood the meaning of her symbolic speech.  The Fifth Circuit found that the trial court had erred in concluding that H.S.  First Amendment claims were frivolous.  The Court remanded the case to recalculate the attorney's fees award without the cost of the defense relating to the First Amendment claims. 

Court Rules Metrolink May Monitor Locomotive Engineers Via Audio/Video Surveillance

Posted by Guest Author on July 21, 2011

This guest post was authored by James E. Oldendorph Jr.

In October 2009, Metrolink installed two inward-facing cameras in all of its locomotive cabs.  While one of the inward-facing cameras records the control panel and gauges, the other is located seven to eight feet from where the locomotive engineer is seated inside the cab and captures a 270 degree span of the interior of the cab, including a view of the engineer.  There is also a forward-facing camera which does not capture any activities or sounds in the locomotive cab, but records video images of the rail right of way, tracks, and train signals.  Metrolink installed cameras and microphones in its locomotive cabs in the wake of the tragic Chatsworth railroad collision of September 12, 2008, involving a Metrolink train in which 25 people were killed and over 100 injured.  The National Transportation Safety Board determined that the collision was caused in part by an engineer using a cell phone to send text messages while operating the train.

On October 20, 2009, the union for a class of Metrolink locomotive engineers, and one individual engineer, sued seeking declaratory and injunctive relief against Metrolink and the removal of the cameras from the locomotive cabs.  The plaintiffs contended that the engineers had a reasonable expectation of privacy in the locomotive cabs, and that Metrolink's audio and video monitoring system violated the engineers’ procedural and substantive due process rights.  Plaintiffs also asserted that Metrolink’s actions were preempted by state law.

On June 1, 2011, Los Angeles County Superior Court Judge Luis A. Lavin granted Metrolink’s motion for summary judgment on all causes of action, finding that there were no issues of material fact warranting trial.  This ruling resulted in a victory for Metrolink on all claims and judgment in its favor.

Judge Lavin found that Metrolink’s camera policy and system did not violate the engineers’ constitutional right to procedural due process because they failed to establish that they were deprived of any life, liberty or property interest or of any statutorily conferred benefit, and failed to establish that the camera policy undermined their collective bargaining agreement with their employer, Amtrak.  Plaintiffs further could not show that Metrolink’s policy and system violated their substantive due process rights in that they failed to show any form of outrageous or egregious conduct constituting a true abuse of power on the part of Metrolink.  Additionally, Judge Lavin determined that Metrolink’s implementation of the camera policy reasonably related to a proper legislative goal of promoting safety on the railways.

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