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