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Detective’s Disclosure Of Colleagues’ Allegedly Abusive Interrogation Tactics Was Not Protected By The First Amendment
August 14, 2012 | Bulletin No. 1007096.1
The United States Court of Appeals for the Ninth Circuit recently held that a detective could not state a 42 U.S.C. § 1983 claim against a police department or its employees based on his allegation that his First Amendment rights were violated after he was placed on administrative leave in retaliation for disclosing his colleagues’ allegedly abusive interrogation tactics. The court of appeals concluded that the detective’s disclosures were made in the course of his official duties and were not protected by the First Amendment. (Dahlia v. Rodriguez (--- F.3d ----, C.A.9 (Cal.), August 7, 2012).
Angelo Dahlia (“Dahlia”) worked as a detective in the City of Burbank Police Department (“Department”). Dahlia claims that in December 2007 he observed Lieutenant Rodriguez squeeze the throat of a suspect in an armed robbery investigation, place the barrel of a gun directly under the suspect’s eye, and ask him how it felt to have a gun in his face. Dahlia also alleged he heard noises coming from the interrogation rooms that included yelling and the sound of someone being hit. He claims he heard officers talking about abusive interrogation tactics and he witnessed more illegal interrogations in the days following the initial interrogations.
Although Dahlia reported the violations to Lieutenant Murphy, he contends the interrogations and physical beatings continued. Dahlia and Detective Ken Schiffner met with Lieutenant Murphy in January 2008 and pleaded with him to end the illegal interrogation methods but Lieutenant Murphy did not intervene. Officers in the Department learned in April 2008 that an Internal Affairs investigation had been instituted to investigate the physical abuse of witnesses and suspects. Dahlia claims that various individuals in the Department threatened and intimidated him to keep him from revealing information about abusive interrogation tactics. Dahlia claims Lieutenant Rodriguez threatened him and told him not to say anything to Internal Affairs, demanded to know what Dahlia had said in his interview with Internal Affairs, and walked past his office “constantly” the day of the interview. Sergeant Penaranda allegedly threatened Dahlia not to say anything to Internal Affairs and Detective Canales warned Dahlia to watch his back.
After Internal Affairs conducted second and third interviews with Dahlia, Sergeants Duran and Penaranda and Lieutenant Rodriguez continued to harass, intimidate, and threaten him. Lieutenant Rodriguez told Dahlia not to mess with him or he would put Dahlia in jail. Dahlia reported the incident to the president of Burbank’s Police Officers’ Association. In May 2009, the Los Angeles Sheriff’s Department interviewed Dahlia and he disclosed the allegedly unlawful conduct of the investigating officers during the armed robbery investigation. Four days later, the Department placed Dahlia on administrative leave.
Dahlia filed a lawsuit in federal district court against the Department, Lieutenants Rodriguez and Murphy, Sergeants Penaranda and Duran, and Detective Chris Canales in which he alleged, among other things, that the defendants retaliated against him in violation of the First Amendment because he disclosed police misconduct. The district court dismissed the lawsuit finding Dahlia’s speech was not protected by the First Amendment and the Department’s action in placing him on administrative leave did not constitute an adverse employment action.
A court must make a five-step inquiry when faced with an employee’s First Amendment retaliation claim. The court must determine whether (1) the employee “spoke on a matter of public concern,” (2) the employee “spoke as a private citizen or public employee,” (3) the employee’s “protected speech was a substantial or motivating factor in the adverse employment action,” (4) “the state had an adequate justification for treating the employee differently from other members of the general public,” and (5) “the state would have taken the adverse employment action even absent the protected speech.” If a public employee makes a statement pursuant to his or her official duties, the employee is not speaking as a citizen for purposes of the First Amendment and the Constitution does not insulate the employee’s communication from employer discipline.
The Ninth Circuit Court of Appeals held in Huppert v. City of Pittsburg, 574 F.3d 696 (9th. Cir. 2009), that a police officer’s cooperation with the FBI was part of his official job duties even though his cooperation took place on his own time, it was not part of his official job duties, and no one ordered him to cooperate. The Huppert court concluded “as a matter of law that California police officers are required, as part of their official duties, to disclose information regarding acts of corruption.” In reaching its decision, the court of appeals in Huppert relied on a California Court of Appeal case from 1939, which gave a broad description of the duties of police officers. The federal court of appeals here found that the California court of appeal case does not apply where a police officer, who is not charged with any corrupt or illegal activity but has information about other officers’ conduct, is directed by his or her superiors not to speak out or testify but disregards those instructions and discloses the information to a third party.
However, the Huppert decision “plainly holds that as a matter of California law, disclosure of police misconduct by fellow police officers contrary to the instructions of supervisors is a core professional duty of California police officers, and such speech is thus not protected by the First Amendment.” The federal court of appeals here held that it is compelled to follow the holding of Huppert despite its “conclusion that it was wrongly decided and unsupported by the sole authority it relies upon.” Because it is bound by the holding of Huppert, the court of appeals affirmed the decision of the trial court that Dahlia’s speech is not protected by the First Amendment.
The court of appeals, however, rejected the trial court’s holding that placement on administrative leave is not an adverse employment action. The appellate court concluded “that under some circumstances, placement on administrative leave can constitute an adverse employment action.” The court could not assess the particular form of leave the Department imposed on Dahlia because the court only had the allegations in the complaint as to the nature of Dahlia’s administrative leave. However, Dahlia alleged that the leave prevented him from taking the sergeant’s exam, caused him to forfeit holiday and on-call pay, and prevented him from furthering his investigative experience. The court found that the allegations, if proven, may constitute an adverse employment action because these actions “appear ‘reasonably likely to deter employees from engaging in protected activity.’” Even the imposition of administrative leave with pay may constitute an adverse employment action because the imposition of such leave (1) may constitute “a tangible change in working conditions that produces a material employment disadvantage,” (2) may result in “a less distinguished title, a material loss of benefits, [and] significantly diminished material responsibilities,” and (3) may constitute a “materially adverse change in the terms and conditions of employment.”
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