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Tuesday, August 21, 2012

Dahlia v. Rodriguez: First Amendment Does Not Protect Police Officer Whistleblowers

In Dahlia v. Rodriguez, --- F.3d --- (9th Cir. 8/7/12), the Ninth Circuit held that the First Amendment does not protect a police officer who reports allegedly illegal conduct by fellow officers. The Court's introduction does a good job of explaining the case:  
Four days after Angelo Dahlia, a detective in the City of Burbank Police Department, disclosed the alleged use of abusive interrogation tactics by his colleagues to the Los Angeles Sheriff’s Department, he was placed on administrative leave by Chief of Police Tim Stehr. That decision prompted Dahlia to file a 42 U.S.C. § 1983 suit against Stehr and lieutenants, sergeants, and a detective of the Burbank Police Department, alleging that his placement on administrative leave was unconstitutional retaliation for the exercise of his First Amendment rights. The district court dismissed the suit, concluding that our decision in Huppert v. City of Pittsburg, 574 F.3d 696 (9th Cir. 2009), controlled Dahlia’s case “unless and until overruled” and that, therefore, Dahlia’s speech was not protected by the First Amendment. The district court, correctly noting that “the nature of an official’s job duties are generally a question of fact,” concluded that Huppert held “as a matter of law that disclosure of incriminating facts is within the official duties of a police officer in the State of California.” 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. We therefore affirm the judgment of the district court.
Slip op. at 8803.  

Courts considering First Amendment retaliation cases must consider the following:  
(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.
The district court (C.D. Cal., Judge Margaret M. Morrow) held that Dahlia failed to establish factors two and five: that his speech was “spoken in the capacity of a private citizen and not a public employee,” or that placement on administrative leave constitutes an adverse employment action.  

The Ninth Circuit affirmed on factor two, with quite a bit of hesitation:  
The upshot of Huppert is a rule, binding only in our Circuit, that the act of whistleblowing is itself a professional duty of police officers, thus stripping such speech of the First Amendment’s protection....  Huppert’s treatment of the reporting of police misconduct and corruption as a routine professional duty belies the personal and professional hazards of such acts. If reporting police abuse and misconduct during the course of an internal investigation, or even a federal or third-party investigation, is considered a professional duty, and is thus unprotected speech, as a matter of law, it is inevitable that police officers will be even less willing to report misconduct than they are now, particularly regarding their superiors. The reasoning in Huppert that professional duties can be determined as a matter of law is wrong, and the result that reports of police misconduct are not protected by the First Amendment is dangerous.
Slip op. at 8821-8822.

Although affirming on the first point resolves the appeal, the Ninth Circuit took the opportunity to reverse on the second issue, holding that "under some circumstances, placement on administrative leave can constitute an adverse employment action."  Slip op. at 8822-8824.

The opinion is available here.

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