Wednesday, July 22, 2009
Court Rejects Police Officer’s Free Speech Claims
By KENNETH OFGANG, Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday rejected First Amendment claims brought by former police officers against their one-time superiors.
Yesterday’s ruling by a divided panel upheld summary judgment in favor of the City of Pittsburg, in Contra Costa County, as well as its chief of police and several high-ranking officers. It was the second time in two weeks that the court rejected a claim that superiors had violated police officers’ free speech rights; on July 13, a different panel of the court upheld a judgment rejecting similar claims by San Bernardino officers.
The ex-Pittsburg officers, Javier Salgado and Ron Huppert, said the department retaliated against them with undesirable assignments, denial of promotion, and other forms of harassment and intimidation after they accused other officers of corruption.
Salgado was the department’s officer of the year in 2001, but was fired in 2004 for falsifying police reports by copying identical statements from one report onto another. He claimed that the “cut-and-paste” method of expediting report preparation was common in the department and that he always made sure the reports were correct before finalizing them, but later pled no contest to five felony counts of falsifying public records and was placed on probation and required to serve 180 days under house arrest.
While defense attorneys questioned whether false reporting was systematic in the department, only one other officer—who was not involved in the lawsuit—was charged; he took the same plea deal as Salgado.
Huppert took disability retirement in 2004.
In their complaint, filed in the U.S. District Court for the Northern District of California, Huppert claimed that he was targeted because he had cooperated in a District Attorney’s Office investigation of corruption at the city’s public works yard and had informed the FBI and the local grand jury of corruption within the department, and both plaintiffs alleged that they were harassed because—while partners in 2001—they uncovered proof that officers were gambling and accepting free golf at the city’s golf course.
Supreme Court Ruling
While the suit was pending, the Supreme Court ruled in Garcetti v. Ceballos, 547 U.S. 410 (2006), that public employees do not enjoy First Amendment protection while speaking in their public capacities rather than as citizens. The court in that case held that a deputy district attorney had no constitutional right to circulate an internal memorandum questioning the veracity of a police officer or to disclose the memo to a defense attorney.
The City of Pittsburg and the individual defendants then moved for summary judgment on the ground that Huppert and Salgado were engaged in their duties as police officers with respect to all of the statements for which they were claiming First Amendment protection. U.S. Magistrate Judge James Larson agreed and granted the defense motion for summary judgment.
Judge Richard Tallman, writing for the Ninth Circuit yesterday, agreed.
Tallman noted that Huppert’s participation in the public works yard investigation was ordered by the department, although he reported to prosecutors rather than police authorities during that six-month period, and that he and Salgado were acting within the scope of their investigative duties with respect to the golf course investigation.
He also concluded that while Huppert was not acting under department orders while testifying before the grand jury or cooperating with the FBI, those actions were mandatory for a police officer under California law.
Any retaliation that a California officer suffers for doing his job, the judge added, must be addressed under whistleblower or civil service laws, not the First Amendment, Tallman declared.
Citing Ceballos, he wrote:
“Our holding does not imply that a police officer might never be protected if he speaks on issues such as corruption, for we recognize that ‘[e]xposing governmental inefficiency and misconduct is a matter of considerable significance.’... Even though we find that, under California law, testimony such as Huppert’s is within the duties of a police officer, speech outside one’s official duties remains protected by the First Amendment.”
Tallman was joined by Senior District Judge William O. Bertelsman of the Eastern District of Kentucky, sitting by designation.
Judge William Fletcher dissented in part. He agreed with the majority that Huppert was acting as a police officer rather than as a citizen while investigating corruption at the public works yard, but said there was at least a triable issue with regard to whether he was acting as a private citizen while speaking to the FBI.
Fletcher also said that the plaintiffs may have been acting in a private capacity with respect to the specific allegations they made regarding corruption at the golf course. He cited evidence that they had continued the probe on their own after being told to discontinue it by the police chief.
As for the grand jury testimony, Fletcher argued, Huppert was acting “pursuant to his duty as a citizen, independent from his duty as a public employee, to comply with the subpoena,” and was therefore entitled to First Amendment protection as a matter of law.
The case is Huppert v. City of Pittsburg, 06-17362.
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