Metropolitan News-Enterprise


Wednesday, August 8, 2012


Page 1


Three-Judge Federal Appeals Panel Takes Issue With Circuit’s Earlier Decision on Whistleblowers


By a MetNews Staff Writer


A detective in the Burbank Police who was placed on administrative leave following his report to the Sheriff’s Department of abusive interrogations by his fellow officers had no cause of action based on a violation of his First Amendment rights, the Ninth U.S. Circuit Court of Appeals held yesterday, while decrying the result.

The opinion for a three-judge panel affirms a decision by U.S. District Judge Margaret M. Morrow of the Central District of California dismissing the action under 42 USC Sec. 1983 brought by Angelo Dahlia against the City of Burbank, the chief of police, and others.

Morrow based her action on Huppert v. City of Pittsburg (9th Cir. 2009) 574 F.3d 696. There, two police officers who were investigating police corruption, were told not to put their findings in writing; in violation of the instruction, they drafted and circulated a report, and one of them assisted the FBI in connection with its own probe.

The court in Huppert, held in a 2-1 ruling that all of their communications were in the course of their duties, and that the First Amendment does not protect utterances made in an official capacity.

Disagreement With Huppert

In yesterday’s decision, Judge Kim Wardlaw made clear that she and her colleagues—Judges Richard A. Paez and Johnnie B. Rawlinson—didn’t agree with Huppert, declaring that it “appears to be incorrectly decided, conflicts with the Supreme Court’s First Amendment public employee speech doctrine, and chills the speech of potential whistleblowers in a culture that is already protective of its own.”

She said the panel was bound to follow it based on the rule that a previous decision of the circuit must be applied unless it has been “effectively undercut by subsequent higher authority.” The higher authority it contravenes, she declared, came before, not after, Huppert.

“Although we have significant reservations about the validity of the Huppert decision, we must agree with the district court that, under Huppert, Dahlia’s disclosure to the Los Angeles Sheriff’s Department was made in the course of his official duties, and thus falls outside the protection offered by the First Amendment,” Wardlaw wrote.

Supreme Court Precedent

Wardlaw drew attention to the U.S. Supreme Court’s 2006 decision in Garcetti v. Ceballos, 547 U.S. 410. The high court held. in an action by Deputy Los Angeles County District attorney Richard Ceballos against then-District Attorney Gil Garcetti and others, that speech, made in the course of official duties, is not protected.

Ceballos was disciplined based on writing a memo urging that a case be dropped. Wardlaw quoted this portion of the opinion:

“The controlling factor in Ceballos’ case is that his expressions were made pursuant to his duties as a calendar deputy. That consideration—the fact that Ceballos spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case—distinguishes Ceballos’ case from those in which the First Amendment provides protection against discipline.”

The court in Garcetti contrasted the situation with that in Pickering v. Board of Education (1968) 391 U.S. 563, where it was held that a public employee could not be disciplined for writing a letter to the editor, in a private capacity.

Wardlaw scoffed that the conclusion in Huppert that the officer’s disclosures to the FBI were made in course of his official duties were based solely on a 1939 California Court of Appeal decision in Christal v. Police Commission of City & County of San Francisco, 33 Cal. App. 2d 564, which said that a police officer’s duties include reporting crimes of which they have knowledge.

The case involved officers who refused to testify before a grand jury, invoking the right against self-incrimination.

Doesn’t Provide Support

Wardlaw asserted:

“The Christal decision was barely apposite to the facts presented in Huppert, and is even less so here….

“The passage lifted from the Christal decision by the Huppert majority… in no way applies to situations where a police officer, not charged with any corrupt or felonious activity but having information about misconduct by other police officers, and directed by superiors not to speak out or to testify, disregards that instruction and instead discloses information to third parties—the classic whistleblower scenario. Thus, the holding in Huppert is entirely unsupported by the sole California case it purports to rely upon.”

She added:

“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. If Huppert, who independently cooperated with the FBI to expose and investigate corruption and memorialized that corruption against his superiors’ orders, was acting ‘pursuant to his professional duties,’ then Dahlia, who cooperated with a Los Angeles Sheriff’s Department investigation of police misconduct, must also have been acting pursuant to his professional duties.”

The case is Dahlia v. Rodriguez, 10-55978,

Michael A. McGill, Michael A. Morguess, and Russell M. Perry of the Upland firm of Lackie, Dammeier & McGill APC, Upland represented Dahlia. Senior Assistant City Attorney Carol Ann Humiston and Richard Terzian of the Los Angeles firm of Burke, Williams & Sorensen LLP acted for the city, and Humiston was attorney for Police Chief Tim Stehr. Other appellees had separate counsel.


Copyright 2012, Metropolitan News Company