Thursday, August 22, 2013
En Banc Court Revives Detective’s Suit Against Burbank Police
By KENNETH OFGANG, Staff Writer
A Burbank police detective who was placed on administrative leave following his report to the Sheriff’s Department of abusive interrogations by his fellow officers may sue for violation of his First Amendment rights, the Ninth U.S. Circuit Court of Appeals held yesterday.
The ruling, by a limited en banc panel, overturns a 2009 case cited by the district judge, and by a three-judge panel that considered the case a year ago. That case broadly held that California peace officers have a duty to report fellow officers’ misconduct, so that such reports are not made in a private capacity and thus lack First Amendment protection.
The 11-judge en banc court unanimously reinstated Angelo Dahlia’s suit against the City of Burbank, its chief of police, and others.
Dahlia is one of a number of Burbank officers who have sued the department in recent years, alleging an atmosphere of abuse and retaliation. He filed his district court action in 2009, claiming that his placement on paid administrative leave was the culmination of a two-year pattern of harassment that began after he complained of a fellow detective threatening a suspect and grabbing him by the throat during an investigation into a robbery at Porto’s Restaurant.
He also claimed he heard suspects being beaten behind closed doors, and that his superiors, including Chief Tim Stehr, approved.
District Court Ruling
U.S. District Judge Margaret M. Morrow of the Central District of California dismissed Dahlia’s retaliation action under 42 U.S.C. Sec. 1983, saying it was barred under Garcetti v. Ceballos, 547 U.S. 410 (2006) and Huppert v. City of Pittsburg (9th Cir. 2009) 574 F.3d 696.
Garcetti established the general rule that the First Amendment does not protect a public employee against retaliation for the performance of an official duty. Huppert applied that rule to the case of two police officers who were investigating police corruption, were told not to put their findings in writing, and violated the instruction by drafting and circulating a report, and by assisting the FBI in connection with its own probe.
The appellate panel in Huppert held in a 2-1 ruling that all of the officers’ communications were made in the course of their duties and were thus bereft of First Amendment protection.
In upholding Morrow’s dismissal of Dahlia’s action, the original panel—Judges Kim Wardlaw, who wrote the opinion, Richard A. Paez, and Johnnie B. Rawlinson—said it was bound by Huppert even though that case “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.”
Paez and Rawlinson were both on the en banc panel. Paez wrote the court’s opinion reinstating the suit, and Rawlinson concurred.
Paez rejected the Huppert court’s broad statement regarding the duty to report fellow officers’ wrongdoing, saying a “practical” approach was required. He distinguished Christal v. Police Commission of City & County of San Francisco (1939) 33 Cal. App. 2d 564, which the Huppert court relied on.
Christal involved officers who refused to testify before a grand jury, invoking the right against self-incrimination. It does not apply to a “classic whistleblower case,” Paez said.
Dahlia, he elaborated, was under a duty to inform his superiors of abuse by fellow officers, and cannot sue on the ground of having been retaliated against for doing so. But to the extent he alleges that independent complaints—such as those he made to the Sheriff’s Department, to Burbank officials outside his chain of command, or to his union—resulted in retaliation, Garcetti does not require dismissal, Paez said.
The judge wrote:
“We conclude that when a public employee speaks in direct contravention to his supervisor’s orders, that speech may often fall outside of the speaker’s professional duties,” he wrote. “Indeed, the fact that an employee is threatened or harassed by his superiors for engaging in a particular type of speech provides strong evidence that the act of speech was not, as a ‘practical’ matter, within the employee’s job duties notwithstanding any suggestions to the contrary in the employee’s formal job description.”
He went on to say:
“Ultimately, Dahlia disclosed the defendants’ misconduct, threats, and harassment to LASD when interviewed about the Porto’s robbery investigation. In doing so, Dahlia clearly spoke outside the chain of command and, indeed, to an outside agency altogether. Whether Dahlia ultimately acted pursuant to his job duties when he disclosed misconduct to LASD may well turn on whether discovery reveals that Dahlia’s supervisors instructed him to meet with and disclose information to LASD or in fact Dahlia did so of his own volition. Construing the complaint in Dahlia’s favor, his disclosure to LASD is protected by the First Amendment.”
Paez also concluded that being placed on administrative leave may, in some circumstances, constitute an adverse employment action, contrary to the district judge’s ruling.
In addition to Rawlinson, Judges Stephen Reinhardt, Susan P. Graber, Marsha S. Berzon, Consuelo M. Callahan, Carlos T. Bea, and Milan D. Smith Jr. concurred in Paez’s opinion, while the other panelists concurred separately, with one urging broader free-speech protections and two concurring narrowly in the result.
Judge Harry Pregerson rejected the chain-of-command distinction.
“The majority’s chain of command guidelines undermine policies that require law enforcement officers to report police abuse up the chain of command,” he wrote. “Under the majority opinion’s approach, a police officer who complies with his duty and reports unlawful acts to his superiors, and as a consequence is fired for his speech, has no First Amendment protection. In contrast, a police officer who reports unlawful acts to the news media, and as a consequence is fired for his speech, is shielded by the First Amendment. Police officers are trapped in a Catch 22: violate their duty to report up the chain of command or expose themselves to retaliation.”
But Judge Diarmuid F. O’Scannlain, joined by Chief Judge Alex Kozinski, argued that Huppert was mostly correct and that the majority was being insufficiently deferential to California law as expressed in Christal.
“I respectfully dissent from the majority’s analysis because our court makes the same error [that it made when it ruled for the plaintiff in Garcetti] today by rejecting what California law tells us about the professional duties of that state’s police officers,” O’Scannlain wrote. But he agreed that the judgment should be reversed in order to give Dahlia an opportunity to amend his complaint so that he can make more specific allegations regarding precisely what his official duties were.
O’Scannlain added that if Dahlia’s allegations are true, the conduct of the defendants was “shocking and intolerable,” but that his remedies likely lie under California whistleblower law, not the First Amendment.
Michael A. Morguess of the Upland firm of Lackie, Dammeier & McGill argued for the plaintiff before the en banc court, while Steven J. Renick of Manning & Kass, Ellrod, Ramirez, Trester, LLP argued for the defense.
The case is Dahlia v. Rodriguez, 10-55978.
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