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Judges Spar on Detective’s Retaliation Claims

SAN FRANCISCO (CN) - The full 9th Circuit considered whether they would chill whistle-blowing if they dismissed the claims of a police officer who was punished after reporting abusive interrogation tactics.

The dispute centers around police abuse of a robbery suspect in Burbank, Calif., that Detective Angelo Dahlia claimed to have witnessed in late 2007.

Dahlia claimed that he saw a detective squeeze the suspect by the throat while placing the barrel of a handgun right beneath his eye, and later heard the sound of someone being hit behind a closed door.

When Dahlia complained, Lt. John Murphy allegedly told him to "stop his sniveling."

Dahlia said the department placed him on administrative leave in May 2009 and that he faced three meetings with Internal Affairs on his allegations in the interim. Each time, other officers allegedly threatened and intimidated Dahlia.

He filed suit in November 2009, but U.S. District Judge Margaret Marrow dismissed all but the claims against Police Chief Tim Stehr.

The 26-page order found that the First Amendment could not shield Dahlia because he reported to the Los Angeles Sheriff's Department as part of his official job duties.

The 9th Circuit affirmed in August 2012 under Huppert vs. the City of Pittsburgh, but the three-judge panel noted "significant reservations" about the effect their ruling might have on deterring whistle-blowers. In a separate memorandum, the court also concluded that Stehr deserved immunity.

Four months later, the court vacated its ruling in favor of a rehearing en banc.

Dahlia's attorney, Michael Morguess with Lackie, Dammeier & McGill of Upland, Calif., insisted at the hearing Wednesday that Dahlia's case stood apart from precedent.

Chief Justice Alex Kozinski seemed skeptical.

"I know you're bent on trying to get us to overrule Huppert," Kozinski said. "An easier way to go is not to overrule precedent."

He asked if the Los Angeles Sheriff's Department had authority over Burbank police, and if, in that case, Dahlia had a "duty" to report to it.

Judge Stephen Reinhardt became visibly irked as Kozinski seemed preoccupied with the question, returning to it several times.

"Has anyone suggested that they don't have the authority?" Reinhardt asked.

"I just suggested it," Kozinski shot back.

"Well, other than Judge Kozinski," Reinhardt retorted. "One out of 11 members of this panel, who thinks they may not have authority."

"I'm sorry, does the Colorado attorney general have authority to investigate the Burbank police department?" Kozinski said.

When Morguess admitted that he had not considered the question, Reinhardt said: "The attorney general obviously has the authority."

"Does the attorney general of Colorado?" Kozinski interjected.

"No, not of Colorado," Reinhardt said. "Why don't you get to the issues in this case?"

Dahlia had alleged that after his third interview with internal affairs, a Burbank lieutenant had told him: "Fuck with me and I will put a case on you, and put you in jail. I put all kinds of people in jail, especially anyone who fucks with me."

Morguess cited those threats and others to distinguish his client's case from Huppert.

Steven Renick, a Los Angeles-based attorney for one of the police officers, conceded, however, that Dahlia might have a claim but that violation of his free speech rights was not one of them.

"When you speak as part of your job duties, it's not a First Amendment issue," said Renick, of Manning & Kass, Ellrod, Ramirez, Trester.

He cited the Supreme Court's decision in Garcetti v. Ceballos, which found that communications made by a public employee did not insulate them from employer discipline.

The panel pressed Renick on the question of whether an officer would be performing his "duty" if the superiors to whom he complained were corrupt.

Renick countered that it was "simply inconceivable" that an officer's professional duty would be placed on hold in such a situation.

As the panel focused on whether dismissal of the case would chill whistle-blowers, Kozinski still pressed Renick on the question of whether or not the Sheriff's Department had authority over Burbank police.

Renick said the department had jurisdiction in political subdivisions, including Burbank, but noted that the "issue" of the case did not hinge on whether Dahlia reported to the wrong agency. He urged the court to affirm dismissal.

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