Cop’s Retaliation Suit|Revived by Full Circuit

     (CN) – The 9th Circuit on Wednesday resurrected the retaliation claims of a Burbank detective who says fellow officers threatened him with violence and jail time to hide their harsh interrogation techniques.
     Angelo Dahlia, a detective in the Burbank Police Department, sued the city of Burbank, Chief of Police Tim Stehr and three officers in 2009 after being placed on administrative leave. The suspension came just four days after Dahlia had told Los Angeles Sheriff’s Department investigators about the violent tactics allegedly used on suspects in a 2007 robbery.
     Dahlia claims that he saw defendant Lt. Omar Rodriguez grab a suspect by the throat and jam a gun under his eye, saying, “How does it feel to have a gun in your face motherfucker.” He says he heard other suspects being beaten behind closed doors by defendant Sgt. Edgar Penaranda, and that defendant Lt. Jon Murphy and Stehr had both approved.
     Dahlia alleges that he complained about the beatings to Murphy several times, but was told to “stop his sniveling.” The department’s internal affairs unit began an investigation in 2008, after which Dahlia says Rodriguez and Penaranda began harassing, threatening and intimidating him to keep quiet. Rodriguez even threatened to have him arrested on a phony case and put in jail, Dahlia claims.
     Dahlia says he kept quiet until 2009, when he reported all of his allegations during an interview with an LASD investigator.
     He claimed in a federal retaliation lawsuit that he had been suspended for asserting his First Amendment rights, but U.S. District Judge Margaret Morrow dismissed the case for failure to state claim. She found that there was no First Amendment issue because reporting misconduct was part of Dahlia’s official duties as a police officer. Morrow also found that the suspension was not an “adverse employment action.”
     A three-judge panel of the 9th Circuit affirmed in August 2012, citing 2009’s Huppert v. the City of Pittsburg. The judges did so reluctantly, however, and four months later the appellate court agreed to reconsider the issue before a full, 11-judge panel. The initial panel also found Stehr immune from the lawsuit, and that ruling stands.
     The court convened the en banc panel in part to consider whether Huppert v. City of Pittsburg remained good law. In that case, the majority held that a California detective had acted according to his official duties when he assisted a district attorney and the FBI with a corruption investigation after his chief had told him not to.
     Public Citizen, a nonprofit consumer advocacy group, noted that it petitioned for the rehearing.
     In a unanimous but hardly harmonious ruling Wednesday, the appeals court revived Dahlia’s claims and remanded them to the District Court. The 11-judge panel also jettisoned Huppert v. City of Pittsburg and concluded that courts must make a “‘practical’ inquiry when determining the scope of a government employee’s professional duties” in such retaliation cases.
     Public Citizen attorney Scott Michelman credited the decision with helping to ensure transparency when “public officials are engaging in misconduct.”
     “Courageous police officers like Angelo Dahlia are in many circumstances the public’s best or even only available source of information about police corruption and abuse,” Michelman said in a statement.
     Dahlia was also represented by Michael Morguess with Lackie, Dammeier, McGill & Ethir of Upland, Calif.
     The appeals court found that Huppert had used too broad a brush in defining the professional duties of public employees. A proper inquiry must ask, among other things, whether an officer’s complaints were directed inside or outside the chain-of-command, according to the ruling.
     “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,” Judge Richard Paez wrote for the court. “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.”
     “Ultimately, Dahlia disclosed the defendants’ misconduct, threats, and harassment to LASD when interviewed about the Porto’s robbery investigation,” Paez added. “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 panel also found that Dahlia’s suspension qualified as an “adverse employment action” because it had allegedly prevented him from taking the sergeant’s exam, among other things.
     While all 11 judges agreed that Dahlia should be allowed to plead his claims further, three of them objected to how the majority got there.
     Judge Harry Pregerson came down against the majority’s chain-of-command distinction, writing in a concurrence that all of Dahlia’s complaints about his fellow officers’ alleged actions should be protected under the First Amendment.
     “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. A police officer who witnesses police abuse may turn a blind eye to avoid either consequence.”
     Judge Diarmuid O’Scannlain warned in a separate concurrence that, in overruling Huppert v. City of Pittsburg, the majority had ventured beyond the “sound principles of federalism” and into a realm in which the courts do not belong. Chief Judge Alex Kozinski, who raised a similar issue during oral arguments in March, joined O’Scannlain’s concurrence, which reads more like a dissent.
     “I respectfully dissent from the majority’s analysis because our court makes the same error today by rejecting what California law tells us about the professional duties of that state’s police officers,” O’Scannlain wrote. “Furthermore, I fear that today’s new approach will lead to ‘judicial intervention in the conduct of governmental operations to a degree inconsistent with sound principles of federalism and the separation of powers.’ Federal courts have no business managing the daily activities of police departments.”
     O’Scannlain found Dahlia’s free-speech claims “threadbare,” but ultimately agreed with the reversal based on the detective’s claims under state law.

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