Written by by Michael P. Stone, Muna Busailah and Robert Rabe   

Dahlia v Rodriguez, filed August 7, 2012 United States Court of Appeals, Ninth Circuit: Courts almost always write opinions that articulate the soundness of the rule they are applying.  In Dahlia v Rodriguez, 2012 DJDAR 10898, the Court made it clear that it did not agree with the rule it was using to decide the case.

Angelo Dahlia ("Dahlia"), a police detective in the City of Burbank Police Department, alleged in a lawsuit that he was placed on administrative leave pending investigation because he cooperated with a Los Angeles Sheriff's Department investigation of police misconduct and disclosed details about abusive interrogation tactics and unlawful conduct within the Burbank Police Department.  Dahlia asserted that the action by the Department, which came four days after he cooperated with the investigation, was in retaliation for his protected speech.  The United States Court of Appeals for the Ninth Circuit determined that Dahlia could not bring a First Amendment retaliation claim based on his disclosure of misconduct within the Burbank Police Department.  The Court held that the disclosures by Dahlia were made pursuant to his "official duties" as a member of law enforcement and therefore, such speech could not have First Amendment protection.

The United States Supreme Court held in Garcetti v. Ceballos, 547 U.S. 410 (2006), that public employee speech made pursuant to "official duties" does not have First Amendment protection, and cannot form the basis for a retaliation claim.  The plaintiff in the case, Richard Ceballos, a Los angeles County Deputy district Attorney, was assigned as Calendar Deputy, a position that entailed supervising attorneys, along with evaluating and investigating cases.  Ceballos became aware of alleged misrepresentations in a search warrant affidavit in a pending case, and organized an office meeting where he recommended that the case be dismissed.  Instead of dismissing the case, the District Attorney pressed forward with the prosecution, and Ceballos claimed he was reassigned, transferred and denied a promotion.  Ceballos brought a civil rights action alleging retaliation for his exercise of constitutionally protected free speech.

Under former law, a statement such as made by Ceballos, that misrepresentations were being made in search warrant affidavits, would easily be found a matter of public concern meriting the highest degree of constitutional protection.  Indeed, courts would have found it praisworthy that he spoke within official channels, rather than causing the greater disruption of going straight to the media.  See, e.g., Lytle v. City of Haysville, 138 F.3d 857, 865 (10th Cir. 1998); Paradis v. Montrose Mem. Hosp., 157 F.3d 815, 818 (10th Cir. 1998).  Ceballos would consequently have prevailed in a civil rights action based on the First Amendment if the jury believed the alleged adverse actions against him were taken in retaliation for his disclosures about the search warrant.  His statements tended to expose alleged perjury and corruption by government officers.  Retaliatory employment actions taken in response to such statements could be viewed by the jury as an effort to 'silence" him, to punish him, ot make an example of him to others and to intimidate him from making similar statements in the future.  Accordingly, a court that upheld the punishment would be protecting governmental cover-ups, corruption, and the so-called "code of silence".

The Supreme Court majority in Garcetti has taken the Constitution in a new direction by seizing upon an isolated phrase in Pickering v. Board of Education, 391 U.S. 563, 568 (1968), where it held that a public employee could not be disciplined for writing a letter to the editor, "as a citizen, in commenting upon matters of public concern ...."  Suddenly, what matters to the current Supreme Court majority is the phrase "as a citizen."  The Court in Garcetti observed that Ceballos made his statements pursuant to his duties as a calendar deputy.  The fact that Ceballos "spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case," removed the constitutional protection against resulting discipline that would otherwise exist.  Accordingly, the Court held, "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."  In other words, if the employee is speaking "pursuant to" his or her official duties, the employee is not speaking as a "citizen", and therefore, the statement does not receive any constitutional protection.

The Garcetti case appears to implicitly overrule many cases that protected communications made in the course of official job performance.  Those cases that may be implicitly overruled include: Cobosz v. Walsh, 892 F.2d 1135 (2nd Cir. 1989) [employee cooperation with the FBI is protected]; Paradis v. Montrose Mem. Hosp., 157 F.3d 815, (10th Cir. 1998) [speaking to the official empowered to investigate malfeasance weighs in favor of protection]; Brawner v. City of Richardson, 855 F.2d 187 (5th Cir. 1988) [disclosure of police misconduct is protected].

The new rule is supposedly designed to keep mere employee grievances out of the federal courts.  Justice Stevens also wrote a powerful dissent, three paragraphs in length, with a footnote identifying six federal appellate precedents within the past decade where public employees were punished for comments that amounted to no more than unwelcome truths the employers preferred to keep undiscovered.  None of these plaintiffs would find justice under the new rule because the statements were made in the course of performing official duties.  The majority in Garcetti anticipated several potential issues that will arise in determining whether the statement is made "pursuant to" the employee's "official duties."  First, was the employee required to speak on the subject, or, could the employee be disciplined for failing to speak on the subject?  Secondly, are "official duties" defined by the duties listed on the written job description, or can they be taken to mean the duties the employee actually performed?  In that connection, Justice Souter in dissent, predicted that employers would insulate themselves from First Amendment liability by drafting broad, general job descriptions under which almost anything an employee might say would fall within the employee's official duties.  The majority answered Justice Souter by commenting that lower courts need not be bound by written job descriptions that appear tailored to this defensive purpose.

So, why worry about a human resource manager drafting broad general job descriptions when the courts will do it on their own?  For police personnel, if Dahlia remains the law, the scope of their "official duties", at least in California, will now include much of what usually forms the basis for a whistleblower claim.  The Dahlia Court stated this rule was created in a prior Ninth Circuit case, Huppert v City of Pittsburg (9th Cir. 2009) 574 F.3d 696, where the court had determined that a police officer's disclosures of alleged department corruption to outside agencies (FBI) fell within "official duties", because California law imposes broad duties on the police to report illegal conduct.  The Dahlia Court reasoned that it had no choice but to follow the expansive Huppert rule for what are "official duties" and bar Dahlia's claim.

In Dahlia, the Court made it clear that it did not 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."  The Court 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 Court's criticism of Huppert might be used by Dahlia to support a request for en banc review by a larger panel of the Ninth Circuit (which would have the authority to overrule Huppert), and maybe even the Supreme Court might want to use this case to clarify "official duties" in the context of the police officer as whistleblower in First Amendment retaliation claims.  This is certainly a decision to watch and Huppert, as it has been applied, is a decision about which we should be concerned.

Michael P. Stone Muna Busailah Robert Rabe

Michael P. Stone is the firm's founding partner and principal shareholder.  He has practiced almost exclusively in police law and litigation for 32 years, following 13 years as a police officer, supervisor and police attorney.

Muna Busailah has been a partner in the firm specializing in police law and litigation since 1995 and is also a Solicitor admitted in Supreme Court of England and Wales.

Robert Rabe, an associate of the firm, is also a member of the Michigan Bar and is a Barrister admitted in the Supreme Court of England and Wales.

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