Vol. 28 No. 19 – Officer’s Report of the Use of Excessive Force May Be Protected by the First Amendment


On August 22, 2013, the Ninth Circuit U.S. Court of Appeals, in a unanimous en banc decision (11-0), reversed a decision by a district court judge and a three judge panel ruling.  In Dahlia v. Rodriguez, et al, the en banc court held that officers may have First Amendment protection against employer retaliation when speaking out about alleged department misconduct and/or corruption.

The district court had reasoned that, under the case of Huppert v. City of Pittsburg, 574 F.3d 696 (9th Cir. 2009), Dahlia’s disclosure to the Los Angeles Sheriff’s Department (LASD) of his fellow officers’ misconduct was not subject to First Amendment protection because he had a professional duty, as a matter of California case law, to report such misconduct. The district court also held that Dahlia’s placement on administrative leave, after he reported the alleged misconduct, did not constitute an “adverse employment action.”

The en banc court overruled Huppert v. City of Pittsburg in reaching this decision. Additionally, the court held that (1) after Garcetti v. Ceballos, 547 U.S. 410 (2006), courts must make a “practical” inquiry when determining the scope of a government employee’s professional duties; that Huppert erred in concluding that California broadly defines police officers’ duties as a matter of law for the purpose of First Amendment retaliation analysis; and (2) placement on   administrative leave can constitute an adverse employment action.

In Garcetti v. Ceballos, Ceballos was a deputy district attorney who reported to his superiors, as part of his job as a calendar deputy, that a police affidavit contained “serious misrepresentations” and, as such, the case should not be prosecuted.  His superiors disagreed and, following “a heated meeting attended by Ceballos,” they decided to proceed with the prosecution.

At a hearing on a defense motion to challenge the warrant, Ceballos testified for the defense and recounted his observations about the affidavit, but the trial court rejected the challenge.

Ceballos was subsequently disciplined for his actions and he sued for violations of his First Amendment rights.  The court held that “[t]he controlling factor in Ceballos’ case is that his expressions were made pursuant to his duties as a calendar deputy.”

Facts in Dehlia

Following an armed robbery on December 28, 2007, Angelo Dahlia, a Burbank Police Detective, reported to Lt. Jon Murphy that he had observed other officers, including Lt. Omar Rodriguez, assaulting and beating the robbery suspects while interrogating them at the police department.  “Murphy responded by telling Dahlia to ‘stop his sniveling.’”

“The physical beatings continued in BPD interview rooms and in the field, evidenced by the booking photos of various suspects. At one point, Chief of Police Stehr appeared at a briefing and, upon learning that not all of the robbery suspects were in custody, said, ‘Well then beat another one until they are all in custody.’”

“After witnessing the misconduct and abuse, Dahlia approached Murphy a second time and pleaded that he did not have control over the case. Murphy became upset and told Dahlia that he ‘didn’t want to hear this shit again’ and that he was ‘tired of all the B.S.’ In January 2008, Dahlia and another detective met with Murphy a third time, telling him that ‘the beatings have to stop’ and ‘the madness ha[s] to stop.’ Murphy did nothing to respond to these complaints and the abusive tactics continued.”

“In April 2008, officers learned that BPD’s Internal Affairs (“IA”) unit was planning to investigate the unlawful physical abuse and the other illegal procedures relating to the Porto’s robbery investigation. Around the same time, Rodriguez began going out of his way to monitor Dahlia and ultimately threatened him not to say anything to IA.”

After Dahlia was interviewed by IA, he was confronted by Lt. Rodriguez and Sgt. Edgar Penaranda, who demanded to know what he said to the IA investigator.  Dahlia, fearing for his safety, denied saying anything.  Subsequently, he was interviewed two more times and, each time, was confronted and/or threatened by Rodriguez and others.

“In January 2009, rumors circulated more widely that the FBI had been contacted about commencing an investigation. At some point, Murphy told Dahlia, ‘It’s on. The Feds are doing an investigation and heads are going to roll. Don’t say anything.’ Penaranda told Dahlia, ‘It’s gonna be bad. You can’t say anything.’ Rodriguez also approached Dahlia and told him ‘not to talk to the feds.’”

On April 2, 2009, Rodriguez called Dahlia into his office, told Dahlia to sit down, and closed the door and the blinds. Rodriguez then retrieved his gun from its holster, looked at Dahlia, and placed the gun in a drawer.  Rodriguez threatened Dalia and said he could create a case resulting in Dahlia’s going to jail.  “Dahlia reported this incident to the Burbank Police Officers’ Association president, who reported it to the Burbank City Manager.”

“On May 11, 2009, LASD interviewed Dahlia about the Porto’s robbery investigation. During the interview, Dahlia disclosed the defendants’ misconduct, threats, intimidation and harassment. Four days later, Dahlia was placed on administrative leave pending discipline.”

“Dahlia filed his § 1983 complaint in November 2009, alleging seven claims: (1) retaliation against a public employee for speech disclosing police misconduct, in violation of the First Amendment; (2) retaliation against a public employee for disclosing information to a government or law enforcement agency, in violation of California Labor Code section 1102.5; (3) retaliation against a public employee for making an oral or written complaint to a governmental agency, in violation of California Labor Code section 6310; (4) retaliation against a public employee for disclosing an abuse of authority or a substantial and specific danger to public health or safety, in violation of California Government Code section 53298; (5) a violation of the Bane Act, California Civil Code section 52.1(b), which prohibits interference with the exercise of constitutional rights; (6) intentional infliction of emotional distress; and (7) negligent infliction of emotional distress.”

Motions for summary judgment were filed by the City and individual defendants based on the Huppert case.  The en banc court noted that “a panel of this court reluctantly affirmed on the ground that it was bound by Huppert v. City of Pittsburg to conclude that Dahlia spoke pursuant to his official duties.”

However, the three judge panel stated that “’the result that reports of police misconduct are not protected by the First Amendment is dangerous.’ Contrary to the district court, the panel found that placement on administrative leave and the resulting consequences, ‘if proven, . . . may very well constitute an adverse employment action.’”  The Ninth Circuit then granted rehearing en banc.

En Banc’s Analysis

The en banc court reviewed the rights of public employees pursuant to the First Amendment.  In the case of Pickering v. Board of Education, 391 U.S. 563 (1968), “the Supreme Court defined a balancing test for First Amendment retaliation cases involving public employees. The task for us is to seek ‘a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’”

“In the classic whistleblower case the state has no legitimate interest in covering up corruption and physical abuse.  As an inevitable result of the Court’s jurisprudence and sound public policy, the First Amendment generally protects public employee whistleblowers from employer retaliation.”

The court noted that since the Pickering decision, “we have further refined the Court’s balancing test into a five-step inquiry. We ask: (1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech.”

Although Dalia’s speech was, unquestionably, a matter of public concern, the district court “ruled that Dahlia’s § 1983 First Amendment claim was barred because it found that . . . as a matter of law, Dahlia could not establish that he spoke ‘in the capacity of a private citizen and not a public employee’. . . .”

“In Garcetti, the Supreme Court narrowed the First Amendment protections for public employees.  The Court added an additional requirement to the Pickering balancing test, holding that the First Amendment does not protect employee speech when that speech is ‘pursuant to . . . official duties.’”

“Ceballos did not act as a citizen when he went about conducting his daily professional activities, such as supervising attorneys, investigating charges, and preparing filings. In the same way he did not speak as a citizen by writing a memo that addressed the proper disposition of a pending criminal case. When he went to work and performed the tasks he was paid to perform, Ceballos acted as a government employee. The fact that his duties sometimes required him to speak or write does not mean his supervisors were prohibited from evaluating his performance.”

“Three years after Garcetti, a panel of this court decided Huppert v. City of Pittsburg, another § 1983 First Amendment retaliation case. The Huppert majority affirmed the grant of summary judgment to the defendant, holding that California police officers acted pursuant to their official duties when they investigated and reported on corruption within the police department by (1) assisting the District Attorney as ordered, (2) defying the police chief’s orders and continuing an investigation at the behest of an immediate supervisor, (3) cooperating with the FBI, and (4) testifying before a grand jury.”

However, the en banc panel states that “the Huppert majority failed to heed Garcetti’s mandate that ‘the properinquiry [to determine the scope of an employee’s professionalduties] is a practical one.’ TheCourt’s stated reason for requiring such an inquiry isprecisely because ‘employers [cannot] restrict employees’rights by creating excessively broad job descriptions.’”

As such, “we overrule Huppert to the extent that it improperly relied on a generic job description and failed to conduct the ‘practical,’ fact-specific inquiry required by Garcetti. In so holding, we reject the defendants’ argument that California police officers are unique for the purposes of First Amendment retaliation claims.”

The en banc panel further noted that “because of the fact-intensive nature of the inquiry [regarding the employee’s duties], no single formulation of factors can encompass the full set of inquiries relevant to determining the scope of a plaintiff’s job duties. However, we find that existing case law and common sense dictate a few guiding principles relevant to the case before us.”

“First, particularly in a highly hierarchical employment setting such as law enforcement, whether or not the employee confined his communications to his chain of command is a relevant, if not necessarily dispositive, factor in determining whether he spoke pursuant to his official duties. When a public employee communicates with individuals or entities outside of his chain of command, it is unlikely that he is speaking pursuant to his duties.”

As such, the en banc panel states that “when a public employee raises complaints or concerns up the chain of command at his workplace about his job duties, that speech is undertaken in the course of performing his job. . . .”

However, if “a public employee takes his job concerns to persons outside the work place in addition to raising them up the chain of command at his workplace, then those external communications are ordinarily not made as an employee, but as a citizen.”

“Second, the subject matter of the communication is also of course highly relevant to the ultimate determination whether the speech is protected by the First Amendment.”  For example, “when an employee prepares a routine report, pursuant to normal departmental procedure, about a particular incident or occurrence, the employee’s preparation of that report is typically within his job duties.”

“Third, 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. 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.”

“(W)e think that it is relevant to the resolution of Dahlia’s case that Dahlia disclosed misconduct to LASD in contravention of the numerous threats and admonitions from his superiors not to reveal the misconduct to anyone. Even assuming arguendo that Dahlia might normally be required to disclose misconduct pursuant to his job duties, here he defied, rather than followed, his supervisors’ orders. As part of a ‘practical’ inquiry, a trier of fact must consider what Dahlia was actually told to do.”

“Because the district court granted a Rule 12(b)(6) motion to dismiss, our task is not to resolve any factual dispute, but merely to determine whether Dahlia’s allegations support a reasonable inference that he acted outside of his professional duties in each instance.”

However, “we conclude that Dahlia’s report to his police union constituted protected speech. At this stage in the proceedings, it is reasonable to infer that Dahlia did not have a duty to report threats to his union, which constitutes a separate entity from BPD.”

“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.”

The en banc panel also concluded that, “under some circumstances, placement on administrative leave can constitute an adverse employment action.”  One factor to be considered is “whether the action is ‘reasonably likely to deter employees from engaging in protected activity.’”

Although the court notes that it has not previously held that placing one on administrative leave with pay is an adverse employment action, “Dahlia’s assertions—that administrative leave prevented him from taking the sergeant’s exam, required him to forfeit on-call and holiday pay, and prevented him from furthering his investigative experience—if proved, would constitute an adverse employment action.”

The court concluded by stating that “we overrule Huppert v. City of Pittsburg and hold that Dahlia has sufficiently stated a claim pursuant to 42 U.S.C. § 1983, namely that he was retaliated against for his protected speech. We remand to the district court for further proceedings consistent with this opinion.”


The court remanded the matter back to the district court for further proceedings which will include a trial to determine, among other things, the scope of Dahlia’s job responsibilities.  For example, the court stated that “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.”

It is also possible that the City of Burbank will petition the United States Supreme Court for review and, if it is accepted by the Court, this decision will be held in abeyance.  Outside counsel for the City was reported as stating that such an appeal is possible.

Assuming, however, that the reasoning of the en banc panel is not modified or changed, agencies must recognize that the First Amendment protections, generally afforded “whistleblowers,” will be applied to law enforcement officers depending on facts and circumstances.

There are some who represent law enforcement agencies who had concerns with the original decision in Dahlia, for many of the same reasons expressed by the three judge panel.  The question of whether or not law enforcement should report abuses by officers is not subject to debate.  The only issue will be whether or not the First Amendment protects those reporting such misconduct from internal adverse employment action?  Apparently, that will be determined on a case by case basis.

The First Amendment is a complex area of law; it is even more so when it involves employees in the public sector.  As such, it is imperative that law enforcement management seek out advice and guidance from their legal counsel on such matters.

As always, if you wish to discuss this case in greater detail, feel free to contact me at (714) 446 – 1400 or via email at mjm@jones-mayer.com.

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