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Ninth Circuit Considers Immunity Criteria for Government Officials

Ninth Circuit judges heard arguments Tuesday about whether a police chief was simply exercising his First Amendment rights when he convinced a former reporter's boss to fire him after he wrote a column criticizing the police force.

PORTLAND, Ore. (CN) – A small-town police chief was merely exercising his First Amendment rights when he convinced a former newspaper reporter’s boss to fire him after the reporter published an editorial critical of a police search at a high school girls’ basketball game, the chief’s lawyer told the Ninth Circuit Tuesday.

Brian Addison, former reporter for the Record-Courier in Baker City (pop. 9,900) wrote a column for the newspaper in March 2008 criticizing the Baker City Police Department for conducting a canine drug search in the gymnasium during halftime at a high school girls’ basketball game. Addison called it a violation of the Fourth Amendment and an invasion of privacy for the game’s attendees.

Police Chief Wyn Lohner demanded a meeting with Addison and his editor, Debbie Schoeningh, the morning Addison’s column was published. Lohner threatened to stop writing his own weekly column unless the paper retracted Addison’s. Schoeningh refused, but the newspaper fired Addison three months later when a new publisher bought it.

When he picked up his final paycheck, Addison says, he got into a “heated” discussion with the paper’s new owner-editor and publisher. Addison acknowledges he “made some inflammatory statements,” but says “the parties involved later state that they did not feel threatened by him.”

Nonetheless, police Officer Wayne Chastain showed up at Addison’s house later that day, June 6, 2008, with a stalking citation, claiming someone at the newspaper had filed a harassment complaint against him. According to Addison, Chastain is the same officer who led the canine search during the basketball game.

A judge at Baker County Circuit Court refused to issue a restraining order and dismissed the citation.

Addison says Baker City police then launched a campaign of harassment against him, repeatedly stopping him for no reason, and on one occasion, needlessly searching his groceries.

Then, Addison says, Chief Lohner got him fired from his job with local nonprofit New Directions by falsely telling his boss that he was dangerous.  From a records request the ACLU filed on his behalf, he says he found out the police had called his boss and suggested that she “implement more rigorous background check procedures, and urged New Directions to request public records about plaintiff from local law enforcement – the implication being that Mr. Addison has a criminal history and that he was not suited for employment at New Directions,” the lawsuit states.

Addison sued Lohner and Baker City in 2015, seeking punitive damages for retaliation, defamation and tortuous interference with economic relations.

Lohner argued that he was entitled to qualified immunity, but U.S. District Judge Michael H. Simon disagreed, finding that no dispute existed over whether Addison’s original newspaper column constituted an exercise of free speech, and a reasonable jury could find that his First Amendment rights had been violated.

Simon also found that Lohner knew his attempt to imperil Addison’s job was illegal, since case law clearly establishes “the right to be free from police retaliation for speech and the fact that severe retaliatory conduct— such as harassment and humiliation or intimidation—and the loss of something other than a governmental right or benefit could support such a claim.”

Lohner appealed. On Tuesday, Robert Franz Jr. argued on his behalf that Lohner was entitled to free speech, too, which should include his conversations with Addison’s former boss.

“Some of the adverse action alleged was speech,” Franz told the three-judge panel. “So we have this interplay between the first amendment speech right of the chief and those of the plaintiff.”

Franz cited Mulligan v. Nichols, in which the Ninth Circuit found that police had exercised their First Amendment rights to speak in their own defense in a public controversy.

In that case, members of the Los Angeles Police Department publicly defended their violent and controversial arrest of a bank executive. In the ensuing publicity, police accused Brian Mulligan of being addicted to drugs, and Mulligan later lost his job. Mulligan sued, and the Ninth Circuit ruled that the police were acting within their First Amendment rights.

“Restricting the ability of government decision makers to engage in speech risks interfering with their ability to effectively perform their duties,” U.S. Circuit Judge Richard R. Clifton wrote for the panel in that case. “It also ignores the competing First Amendment rights of the officials themselves. The First Amendment is intended to ‘preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.’ That marketplace of ideas is undermined if public officials are prevented from responding to the speech of citizens with speech of their own.”

Arguing on Addison’s behalf, attorney Cliff Davidson told U.S. Circuit Judges Kim McLane Wardlaw and John B. Owens and U.S. District Judge Rosemary Marquez Tuesday that Mulligan v. Nichols differed significantly from the current case.

Davidson said Addison’s case would be subject to the same logic as the earlier case if Lohner used his own column in the Record-Courier to address Addison’s editorial. That, Davidson said, would be a case involving Chief Lohner’s right to free speech.

“If what had happened in this case was that Chief Lohner had responded to the editorial at that time by writing a column of his own attacking Mr. Addison, saying ‘he got this wrong, his analysis is wrong, his integrity as a journalist is fallible’ – any of those things – and he had written that in response to a public conversation about the police force and the Baker City Herald had decided, ‘you know what, Chief Lohner is right, maybe we should terminate him,’” Davidson told the judges.

Instead, Davidson said, Lohner had acted in private, launching a six-year- campaign of harassment and retaliation that culminated in Addison losing his job.

“There was no public conversation concerning Mr. Addison that Chief Lohner was participating in,” Davidson said. “Rather, what happened was a private email that Chief Lohner sent to Mr. Addison’s employer, asking, ‘hey who does your background checks? I see you have this new hire.’ They wrote back and say, ‘we do the regular Department of Homeland Security background checks. Why? Is there a problem? Is there something we should know?’ And he wrote back and said, ‘give me a call…’ And then they spoke twice. And then our client was fired.”

The panel did not indicate when it would issue a ruling.

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