Friday, October 31, 2025
Page 3
Ninth Circuit:
Officer’s Suit Alleging ‘Patriot Purge’ by City Police Is Revived
Opinion Says District Court Erred in Dismissing Plaintiff’s First Amendment Action Alleging That Pleasanton Department Retaliated Against Him After He Attended Area Rally on Jan. 6, 2021
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday revived a lawsuit by a police officer in a city in Alameda County who alleged that supervisors attempted to fire him for his conservative political beliefs in violation of the First Amendment after it was discovered that he attended a Sacramento “Stop the Steal” rally on Jan. 6, 2021.
Saying that District Court Judge Araceli Martínez-Olguín of the Northern District of California applied the wrong legal standard and failed to give full effect to the plaintiff’s allegations, the court reversed the order dismissing the action with prejudice and remanded the case for further proceedings.
In a memorandum decision, signed by Circuit Judges Jacqueline H. Nguyen and Daniel A. Bress and by Senior Circuit Judge Sidney R. Thomas, the court said that Martínez-Olguín erred in ruling that the officer’s concession that the Pleasanton Police Department cited his social media posts as the reason for his firing “doom[ed]” his claim that he was retaliated against for attending the rally.
Faulting Martínez-Olguín for failing to address whether those social media posts could constitutionally serve as valid grounds for firing, and for not giving full consideration to his assertion that the department’s stated reasons for trying to have him terminated were pretextual, Nguyen, Bress, and Thomas also declared that the judge wrongly applied the standard applicable to retaliatory arrest claims to the public employment action.
They cited case law establishing that the government is barred from retaliating against a party for expressing his political beliefs, even if the employment decision could be justified on other, nondiscriminatory grounds, and declared that “it is not enough” for the state to show that it had an “alternative basis for taking the challenged action.”
Complaint Filed
Appealing the judgment against him was Peter McNeff, who filed a complaint against the Pleasanton Police Department, then-Chief David Swing (now serving as executive director for the East Bay Regional Communications System Authority), then-Captain Larry Cox (now retired), and others, on Jan. 10, 2023. He asserted First Amendment retaliation claims under 42 U.S.C. §1983.
In the operative pleading, he alleged:
“Even as a public employee, McNeff has a First Amendment right to engage in political activity on matters of public concern. That is all he did. His supervisors, Chief Swing and Captain Cox, knew that. They had an obligation to respect McNeff’s political views and protect him from retaliatory actions in the workplace. They did the opposite. They retaliated against him because they did not agree with his political views and activity and because they wanted to make an example of him, as part of the Patriot Purge they were carrying out through the department.”
McNeff claimed that Swing tried to fire him after he posted pictures of himself and his wife at the rally, which he attended during off-duty hours in plain clothes, on his personal Facebook page. However, he said that the termination was halted after he successfully challenged the action in arbitration.
In July 2024, Martínez-Olguín granted the defendants’ motion to dismiss the operative complaint with prejudice, saying that “McNeff plainly alleges that Defendants initiated the adverse actions against him following a complaint about his social media conduct” and that this “concession that Chief Swing had another rationale for placing him on leave…dooms his claim that Defendants retaliated against him for his rally attendance.”
Ninth Circuit’s View
Nguyen, Bress, and Thomas noted that “[a] government employee claiming retaliation for the exercise of his First Amendment rights must show…that his protected, private speech ‘was a substantial or motivating factor in the adverse employment action’ ” and pointed out that qualified immunity protects government actors unless the plaintiff pleads facts showing a violation of a clearly established constitutional right.
Applying those standards, they opined:
“The district court analyzed only ‘McNeff’s attendance at the rally’ as a causal factor, but McNeff alleges that Chief Swing ‘also violated [his] First Amendment rights by trying to fire him for comments he made on social media.’ Swing does not dispute that McNeff’s social media posts were a causal factor in the decision to terminate McNeff’s employment—that was the [police department’s] stated reason. Therefore, McNeff adequately alleged causation to the extent his claim is based on the social media posts.”
Saying that the Facebook posts cited by the department as a reason for the attempt to terminate McNeff’s employment were made before he was even hired, they remarked:
“[T]he manner in which Chief Swing conducted the investigation supports McNeff’s allegation that the investigation into his social media posts was a pretext….Although McNeff had a ‘stellar’ employment record, Swing commenced the investigation immediately after receiving a single, anonymous complaint about McNeff’s rally attendance and three of McNeff’s pre-employment Facebook posts. The [department] then spent two months searching through McNeff’s Facebook posts….Even after it emerged…that the posts had not been disruptive and that no one inside or outside the [agency] was even aware of them prior to the rally, Swing still fired McNeff.”
Anonymous Complaint
Turning to the defendants’ claim that an anonymous complaint made against McNeff for his social media content serves as “another rationale” for the adverse employment action, they said:
“A government defendant’s claim to have acted with a non-retaliatory motive is an affirmative defense that ‘[o]rdinarily . . . may not be raised by motion to dismiss.’ ”
The jurists added:
“Moreover, it is not enough for the government actor to show he had ‘an alternate basis for taking the challenged action.’…The more stringent standard…cited by the district court[] applies to retaliatory arrest claims, which involve ‘complex causal inquiries’ regarding ‘whether the adverse government action was caused by the officer’s malice or the plaintiff’s potentially criminal conduct.’…’[I]n the public employment context,’ ‘establishing the causal connection between a defendant’s animus and a plaintiff’s [discharge]’ can be ‘straightforward.’…At the motion to dismiss stage, it is premature to conclude whether Swing would have taken the adverse actions even in the absence of the allegedly protected activity.”
Under those circumstances, they declared:
“Because McNeff adequately alleged the violation of a First Amendment right, we reverse and remand for further proceedings.”
The case is McNeff v. Pleasanton Police Department, 24-4651.
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