This blog post was authored by Alex Polishuk
On Tuesday, December 3, 2013, the U.S. Court of Appeals for the Ninth Circuit, on the heels of its recent Dahlia v. Rodriguez decision that broadened police officers’ First Amendment rights, issued its ruling in another First Amendment case. In Hagen v. City of Eugene, the Court applied Dahlia’s newly articulated legal framework for analyzing the application of peace officers’ First Amendment rights. The Court found that the police officer’s conduct in this particular case was not entitled to First Amendment protection.
In the seminal case Garcetti v. Ceballos, the United States Supreme Court in 2006, held that public employee speech made pursuant to “official duties” does not have First Amendment protection, and cannot form the basis for a retaliation claim. In 2009, in Huppert v. City of Pittsburg, the Ninth Circuit held that peace officers in California inherently have, as part of their “official duties,” the duty to report illegal conduct by anyone, including their own colleagues and superiors. Huppert’s interpretation of “official duties” was fairly broad and provided a bright-line rule for when an officer’s conduct is outside his or her “official duties.” On August 21, 2013, in Dahlia v. Rodriguez, a long anticipated decision, the Ninth Circuit expressly overruled Huppert and increased police officers’ First Amendment protection.
The Court in Dahlia held that an analysis of a peace officer’s “official duties” requires a close evaluation of the facts of the particular case. Importantly, however, the Dahlia Court ruled that “whether the employee confined his communications to his chain of command is a relevant, if not necessarily dispositive, factor in determining whether he spoke pursuant to his official duties. When a public employee communicates with individuals or entities outside of his chain of command, it is unlikely that he is speaking pursuant to his duties.” Additionally, the Court described that the subject matter of the speech at issue is highly relevant. The Court expressed that, “[w]hen an employee prepares a routine report, pursuant to normal departmental procedure, about a particular incident or occurrence, the employee’s preparation of that report is typically within his job duties.” On the other hand, “if a public employee raises within the department broad concerns about corruption or systemic abuse, it is unlikely that such complaints can reasonably be classified as being within the job duties of an average public employee,”
In Hagen, the plaintiff was a police officer for the Eugene Police Department (“EPD”), assigned to the K-9 team. He reported departmental safety concerns pertaining to misfires and erroneous explosive detonations of the SWAT team. From 2005 until April of 2008, Hagen directed his complaints to his sergeant supervisor, Sergeant Eichhorn, and other departmental sergeants. Hagen identified specific incidents with regard to his safety concerns. In May of 2008, Eichhorn informed Hagen that he would be transferred out of the K-9 unit because he was “the spokesman for the majority of the complaints.” While this initial transfer was rescinded, Hagen began to receive negative performance reviews. Hagen was then ultimately transferred from the K-9 unit by Lieutenant Bills. Chief of Police Kerns confirmed the decision despite his knowledge that Hagen believed he was being retaliated against for airing his SWAT safety concerns.
In April 2010, Hagen sued the City, Chief Kerns, Lieut. Bills, and Sgt. Eichhorn. The district court held a jury trial. At the close of Hagen’s case-in-chief, the City and the individuals defendants moved for judgment but the court denied the motion. Then, in a unanimous general verdict, the jury found that each defendant had deprived Hagen of his First Amendment rights. The defendants then moved for judgment as a matter of law. The Court denied the motion and the City and individual defendants then filed a notice of appeal.
The Court of Appeals reversed the district court’s denial of the motion for judgment and ruled that the evidence presented to the jury would not reasonably permit the conclusion that Hagen had established a First Amendment retaliation claim. The Court held Hagen’s speech concerned his employment and safety issues which EPD officers were required to report as part of the tasks they were paid to perform. The Court further found that Hagen’s concerns were directed only to his coworkers and to his superior officers. The Court concluded that Hagen’s speech was in line with a “routine report, pursuant to normal departmental procedures about a particular incident or occurrence,” which under the framework set forth in Dahlia, classified Hagen’s speech as being within his job duties as a public employee. The Court also referred to Dahlia in holding that, where a plaintiff’s supervisor ignores plaintiff’s initial report, subsequent repeated reports to the same supervisor does not convert those reports into protected speech.
Importantly, the Court took notice that the City’s Human Resource and Risk Services Administrative Policies and Procedures Manual required police officers to report safety concerns. The Court remarked that the City Manual provided “[e]mployees are…responsible for reporting accidents, faulty equipment, unsafe practices of fellow employees, and/or unsafe conditions of work areas to their supervisors.” Additionally, the Court pointed to an EPD General Order that required employees to “[r]eport any safety hazard or malfunctioning equipment to the [their] supervisor immediately so that corrective action can be taken.”
While the Dahlia Court cautioned against adoption of a “bright line” test for assessing whether peace officers have engaged in “official duties,” the Hagen decision suggests that limited systematic determination of what conduct constitutes “official duties” may be made. With support from Dahlia, the Hagen decision suggests that, where (1) the peace officer’s speech concerns safety issues pertaining to specific department incidents and/or occurrences; (2) applicable statutory provisions or administrative policies and/or procedures require the police officer to report on said safety issues; and (3) the police officer’s speech is directed to or is within the officer’s chain of command, the speech will typically be classified as being within the officer’s job duties.