Angelo Dahlia v. Omar Rodriguez
735 F.3d 1060, 36 I.E.R. Cas. (BNA) 613, 2013 WL 4437594 (2013)
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Rule of Law:
In a First Amendment retaliation claim, whether a public employee spoke as a private citizen is a practical, fact-specific inquiry, not one determined by generic job descriptions. A police officer's report of misconduct to an outside agency or in contravention of a supervisor's orders may constitute protected speech, and placement on administrative leave can qualify as an adverse employment action.
Facts:
- Following a robbery investigation in December 2007, Burbank Police Detective Angelo Dahlia witnessed fellow officers, including Lieutenant Rodriguez and Sergeant Peñaranda, physically abusing suspects during interrogations.
- Dahlia observed the Chief of Police, Stehr, appear to encourage the abusive tactics.
- Dahlia complained about the abuse to his supervising officer, Lieutenant Murphy, on three occasions but was told to "stop his sniveling."
- As an Internal Affairs (IA) investigation became imminent, Rodriguez, Peñaranda, and Murphy repeatedly threatened Dahlia to remain silent about the misconduct.
- In April 2009, Rodriguez called Dahlia into his office, placed his gun in a drawer, and threatened to "put a case" on Dahlia and put him in jail if he spoke out.
- Dahlia reported Rodriguez's threat to the president of the Burbank Police Officers’ Association.
- On May 11, 2009, Dahlia was interviewed by the Los Angeles Sheriff’s Department (LASD) and disclosed the misconduct, threats, and harassment he had witnessed.
- Four days after his interview with LASD, on May 15, 2009, Dahlia was placed on administrative leave.
Procedural Posture:
- Angelo Dahlia filed a 42 U.S.C. § 1983 complaint in the U.S. District Court, alleging First Amendment retaliation by the City of Burbank and several police officers.
- The defendants filed a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).
- The district court granted the motion to dismiss with prejudice, holding that, under the controlling precedent of Huppert v. City of Pittsburg, Dahlia spoke pursuant to his official duties and that placement on administrative leave was not an adverse employment action.
- Dahlia, the appellant, appealed to the U.S. Court of Appeals for the Ninth Circuit.
- A three-judge panel affirmed the district court's dismissal, stating it was reluctantly bound by the Huppert precedent.
- The Ninth Circuit then voted to grant a rehearing of the case en banc to reconsider its holding in Huppert.
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Issue:
Does a police officer's disclosure of fellow officers' misconduct to an outside law enforcement agency constitute speech protected by the First Amendment, and does being placed on administrative leave constitute an adverse employment action for the purposes of a retaliation claim?
Opinions:
Majority - Judge Paez
The court holds that Dahlia's speech may be protected and that placement on administrative leave can constitute an adverse employment action. The determination of whether a public employee speaks as a citizen requires a practical, fact-specific inquiry into the nature of the employee's duties, rather than reliance on a broad, categorical definition. This court overrules Huppert v. City of Pittsburg because it improperly relied on a generic, court-created job description instead of conducting the practical inquiry required by Garcetti v. Ceballos. Factors in this inquiry include whether the speech was made outside the chain of command, its subject matter, and whether it contravened a supervisor's orders. Dahlia's disclosures to his union and to an outside agency like the LASD were plausibly made as a private citizen. Furthermore, an adverse employment action is any action 'reasonably likely to deter employees from engaging in protected activity,' a standard that can be met by placement on administrative leave if it results in loss of pay, promotional opportunities, or professional stigma.
Concurring - Judge Pregerson
All of Dahlia's speech reporting misconduct should be protected. The Garcetti 'official duties' exception should not apply when superiors restrict speech to cover up illegal conduct, which is unrelated to the government's interest in efficient operations. It is nonsensical to allow the department to forbid Dahlia from reporting misconduct and then claim the forbidden reporting was part of his official duties. The majority's chain-of-command framework creates a 'Catch-22,' forcing officers to either violate their duty by remaining silent or speak up internally and face unprotected retaliation.
Concurring - Judge O'Scannlain
While concurring in the judgment to remand, this opinion disagrees with the majority's analysis. The Huppert decision was correct in relying on established California law (Christal v. Police Commission) which defines a police officer's duty broadly to include reporting criminal activity to superiors and outside agencies. This duty is inherent to the job. The majority's new 'guiding principles,' particularly those concerning the chain of command and defying orders, wrongly create exceptions to Garcetti's categorical rule and invite improper judicial interference in police operations. However, Dahlia should be granted leave to amend his complaint to attempt to plead sufficient facts that might establish his speech was outside his official duties.
Analysis:
This decision significantly alters First Amendment retaliation jurisprudence in the Ninth Circuit by replacing a categorical, law-based definition of 'official duties' with a fact-intensive, practical inquiry. By overruling Huppert, the court makes it substantially more difficult for public employers, particularly law enforcement agencies, to secure dismissals of whistleblower claims at the pleading stage. The ruling strengthens protections for employees who report corruption, especially when they circumvent their chain of command or defy orders to remain silent, by treating the scope of their duties as a question of fact for a jury to decide.
