Ninth Circuit Revives Local Prosecutor’s Retaliation Lawsuit

Tuesday, March 23, 2004

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Ninth Circuit Revives Local Prosecutor’s Retaliation Lawsuit

Court Rules Deputy District Attorney Had Free Speech Right to Question Warrant Affidavit

By DAVID WATSON, Staff Writer

The Ninth U.S. Circuit Court of Appeals yesterday revived a suit by a deputy district attorney who claims he suffered retaliation after suggesting sheriff’s investigators might have lied to obtain a warrant.

The court ruled that U.S. District Judge Howard A. Matz of the Central District of California erred in granting summary judgment in favor of Los Angeles County, former District Attorney Gil Garcetti, Garcetti’s top deputy, and Deputy District Attorney Carol Najera. Matz ruled the individual defendants had qualified immunity in the 42 U.S.C. Sec. 1983 action by Deputy District Attorney Richard Ceballos, who is now with the office’s Public Integrity Division.

The judge also found that the county and Garcetti, in his official capacity, were immune from suit under the Eleventh Amendment.

Both rulings were incorrect, the appellate panel said.

Pomona Calendar Deputy

Ceballos claimed in his lawsuit that his supervisors retaliated against him after, as a calendar deputy in Pomona, he wrote a memorandum questioning a search warrant affidavit prepared by a deputy sheriff in a drug case and recommending the case be dismissed. Najera and Frank Sunstedt, then head deputy district attorney, first asked for changes in the memo—which Ceballos made—and then decided the prosecution should not be dropped, Ceballos alleged.

Ceballos advised the defendant’s attorneys of his conclusions and testified at a suppression hearing, but a judge allowed the prosecution to proceed. The deputy district attorney claimed he was then demoted to trial deputy and reassigned to handle misdemeanors in El Monte.

Judge Stephen Reinhardt said that under the Ninth Circuit’s 1988 decision in Roth v. Veterans’ Administration of the United States, 856 F.2d 1401, it is established law that a public employee who seeks to expose official misconduct is exercising a protected First Amendment right. Noting that Roth involved a Veterans’ Administration “troubleshooter” who was fired after exposing corruption in reports prepared as part of his official duties, Reinhardt declared:

“Nor do our cases provide any support for the defendants’ contention that a public employee’s speech is deprived of First Amendment protection whenever those views are expressed, to government workers or others, pursuant to an employment responsibility.”

Balancing Test

Since the right was clearly established, the defendants were entitled to qualified immunity only if they could show it was outweighed by the need to promote efficiency and avoid disruption in the workplace, Reinhardt said. They offered no evidence to establish that, he said.

Judge Diarmuid F. O’Scannlain, writing separately, agreed that reversal on the qualified immunity issue was required under Roth, but said that case was “wrongly decided and— ought to be overruled, perhaps even by our court’s rehearing the present case en banc.”

He explained:

“Indeed, with Roth as precedent and now Ceballos on the books, what federal or state employment-based decision can possibly evade intrusive federal constitutional review? Suppose that, instead of retaining private counsel as it has here, the County had provided its own staff attorney representation. Suppose further that the deputy county counsel assigned to defend this case had (just like the majority) quite mistakenly, but also quite sincerely, come to the conclusion that Ceballos indeed has a viable First Amendment retaliation claim and, consequently, went so far as to file a brief in this court not only agreeing with the claims made by Ceballos’s counsel, but providing additional arguments to support them. Could the County discipline its counsel without fear of being hauled into federal court to defend itself against allegations of having committed a constitutional violation? Evidently notófor as the majority makes pellucid today, Roth and its progeny would enable such counsel plausibly to claim some personal stake in the message conveyed by that brief.”

By holding that public employee whistleblowers are constitutionally protected from retaliation, O’Scannlain said, the Ninth Circuit was trying to “squeeze a policy-oriented square peg into a round constitutional hole,” in effect transforming into a matter of constitutional law the policies embodied in whistleblower legislation protecting those who expose corruption and wrongdoing.

He commented:

“How strange it must now be for the hundreds, if not the thousands, of legislators throughout this country who have voted to enact or to retain such laws now to discover that their votes were essentially meaningless—that the First Amendment already provided public employees with protections co-extensive with, and in many respects even greater than those purportedly conferred by, the legislation they crafted and helped shepherd through their state legislative processes.”

O’Scannlain noted that Ceballos contended he was performing his prosecutorial duty in investigating the basis for the warrant and, under Brady v. Maryland, 373 U.S. 83 (1963), in communicating his findings to defense counsel.

“[E]mployee speech solicits the protection of the First Amendment only when it also results from the employee’s decision to express his or her personal opinions—that is, those views he or she holds as a citizen and not as a public employee,” the judge argued. “The First Amendment, in short, does not protect public employees’ routine and required speech on behalf of the government.”

But Reinhardt said the rule O’Scannlain advocated would be destructive of efforts to expose misconduct and improve governance.

He wrote:

“The right of public employees to speak freely on matters of public concern is important to the orderly functioning of the democratic process—.Stripping them of that right when they report wrongdoing or other significant matters to their supervisors would seriously undermine our ability to maintain the integrity of our governmental operations.”

It would also encourage whistleblowers to take their complaints to the public—thus preserving their own constitutional rights—rather than going through channels, he warned.

“To deprive public employees of constitutional protection when they fulfill this employment obligation, while affording them protection if they bypass their supervisors and take their tales, for profit or otherwise, directly to a scandal sheet or to an internet political smut purveyor defies sound reason,” the judge asserted.

Turning to the Eleventh Amendment issue, Reinhardt said that Garcetti as district attorney, and derivatively the county, were entitled to immunity only if the acts for which he was being sued were on behalf of the state. While the California Supreme Court has held that a district attorney acts as a state official in prosecuting crime, state courts “have not defined the precise characteristics that distinguish a district attorney’s prosecutorial function from his other functions,” the judge observed.

But Reinhardt said Ceballos’ suit was based largely on “personnel decisions concerning his promotion, demotion, and transfer—decisions squarely within the District Attorney’s administrative function.” Those actions were “carrying out—county functions” and did not give rise to Eleventh Amendment immunity, the judge reasoned.

Judge Raymond C. Fisher concurred in the opinion authored by Reinhardt.

Ceballos said yesterday he was “very pleased” with the court’s ruling. He said he hoped the county would now move to settle the case, saying it should “stop wasting taxpayer money” defending actions that took place under the Garcetti regime.

His transfer from the El Monte assignment to the Public Integrity Division came soon after the election of current District Attorney Steve Cooley, Ceballos pointed out.

The warrant in the underlying criminal case had been obtained to look for stolen auto parts, though the resulting prosecution was for drug offenses, Ceballos related. He said the affidavit claimed sheriff’s deputies followed tire tracks down a long driveway to the site where the warrant was executed.

When he went to the scene to investigate, Ceballos said, he found the driveway was actually a separate street. His own experiments indicated that it was unlikely tracks could have been followed, he explained.

When he confronted the investigator, the suggestion he received was “maybe we ought to change that to tire gouge marks,” Ceballos said, noting that he also discovered the deputies involved had previously been sued by the defendant.

Montebello attorney Humberto Guizar, who represented Ceballos, said he met the deputy district attorney after Ceballos came to the Mexican American Bar Association seeking assistance. The group “basically shunned” Ceballos because of its ties to Garcetti, Guizar declared.

Guizar described himself as “ecstatic” about the court’s ruling, adding he hoped it would have an effect “in terms of fixing the system.”

He said his practice consists largely of police abuse cases in which he represents gang members or other accused criminals, adding he enjoyed the change of having a prosecutor for a client.

Najera was a candidate for judge in the March 2 primary, finishing third in a field of five for an open seat. She was rated “not qualified” by the Los Angeles County Bar Association’s Judicial Elections Evaluation Committee.

In an article about Ceballos’ case in LA Weekly in December 2000, criminal defense attorney Gigi Gordon—a vice chair of the LACBA panel whose husband is both a criminal defense lawyer and a panel member—was quoted as saying the District Attorney’s Office should have turned Ceballos’ internal memos over to the defense lawyers as Brady material.

Najera was Ceballos’ immediate supervisor in Pomona, and Ceballos said it was Najera who instructed him to redo his original memorandum. Najera also cross-examined him at the suppression hearing, making what Ceballos described as “very personal attacks” on him.

Attorney Cindy S. Lee of Franscell Strickland Roberts & Lawrence in Glendale, who represented the defendants, did not return a call for comment from the MetNews yesterday.

The case is Ceballos v. Garcetti, 02-55418.