Ex-Movie Exec Loses Free Speech Case Against Police

PASADENA, Calif. (CN) - A former bank and Hollywood executive lost his appeal against a police union he claimed smeared him after he accused two Los Angeles Police Department officers of excessive force.

The Ninth Circuit Court of Appeals on Monday affirmed a jury's verdict against Brian Mulligan and in favor of the Los Angeles Police Protective League, a police union.

"The First Amendment of the Constitution protects citizens from attempts by government officials to chill their speech. One question presented by this case is whether that same constitutional guarantee also requires those officials to remain silent when accused of misconduct, lest they risk liability for unlawful retaliation. We conclude that it does not," U.S. Circuit Judge Richard Clifton wrote for a three-judge panel.

In early 2013, Brian Mulligan sued the Los Angeles Police Protective League and the City of Los Angeles for $20 million. He claimed they had acted in concert to discredit him as a drug addict after he filed an administrative claim against LAPD officers James Nichols and John Miller over a May 2012 incident.

The two sides report the incident very differently, according to Clifton's 19-page opinion. Mulligan said that the officers took him to a motel against his will. After he escaped, the officers encountered him a second time, hitting him in the face with a baton, jabbing him in the back and slamming his face into the ground, he said.

But the officers said they took Mulligan to the motel because he seemed confused and asked them to let him "sleep it off," according to the court's opinion. Later, the officers say they found him running down the street, screaming and trying to open car doors. The officers said Miller used his baton after Mulligan charged at them.

Mulligan detailed his allegations against the police in a press conference, then said the police published a press release claiming he was addicted to the synthetic drug, bath salts.

Soon after, Mulligan's current employer, Deutsche Bank, fired him. Before that, Mulligan had also served as an executive at Universal Pictures and Fox Television.

The police officers said Mulligan had visited a Glendale police station only days before the incident asking if it was lawful to use bath salts. The union later posted a press release that included an embedded police recording of Mulligan's conversation at the station.

The union argued that its speech responding to Mulligan's claims against the officers was protected. But in seeking to persuade the Ninth Circuit to reverse the jury verdict, Mulligan contended that public officials should not be afforded the same First Amendment protections as citizens.

Clifton disagreed.

"That viewpoint would cripple the ability of state actors to play a part in public discourse," he wrote. "It is well established that public employees and officials retain rights to free speech."

In an unrelated case, Nichols is currently facing criminal charges that he sexually assaulted four women while on duty. Mulligan tried to persuade the court it should consider evidence of the claims against Nichols, who has also faced several civil lawsuits. But Clifton said they are irrelevant.

"The accusations that Nichols had sexually assaulted vulnerable women involved conduct distinct from the excessive force allegations at issue in Mulligan's case," Clifton wrote.

The court also ruled against Mulligan on his police negligence and negligent supervision claims.

Former union spokesman Eric Rose said in an email that he was pleased with the court's decision.

"One cannot hold a high-profile news conference accusing public officials of misconduct and threaten those same public officials with liability for unlawful retaliation if they respond to those allegations. As the Ninth Circuit wrote in no uncertain terms, the First Amendment constitutional guarantee of free speech applies to public officials as well as citizens," Rose said.

Mulligan's attorney, Skip Miller of Miller Barondess, said that his client would pursue another appeal.

"I think the decision is wrong," Miller wrote in an email.

Circuit Judge Sandra Ikuta and U.S. District Judge Frederic Block joined Clifton's opinion.

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