Rains Lucia Stern partners Mike Rains and Harry Stern scored a victory in the Ninth Circuit Court of Appeals this week in a very interesting case involving a lawsuit filed by a former officer named Angelo Dahlia. Dahlia sued as a result of claims of brutality and a cover-up during the investigation of a takeover robbery of the beloved Burbank bakery, Portos.
Mike and Harry were hired by the City of Burbank to represent Burbank Police Department Sergeant Edgar Penaranda. Dahlia sued Sgt. Penaranda, the City, the Chief of Police and a host of his other former colleagues alleging that they violated his First Amendment rights when he was placed on administrative leave after making some very serious and inflammatory claims about the conduct of his brethren at Burbank PD. For example, he alleged that when the Chief of Police learned that the suspects were still outstanding he exhorted his detectives to “beat another one until they are all in custody.” Frankly, Dahlia’s claims had the ring of someone who had watched too many episodes of “The Wire.”
A three-judge panel of the Ninth Circuit grudgingly upheld the Federal District Court’s grant of a motion to dismiss the case based on the Ninth’s prior holding in Huppert v. City of Pittsburg, 574 F.3d 696 (9th Cir. 2009). Under a line of U.S. Supreme Court cases culminating in Garcetti v. Ceballos, (2006) 547 U.S. 410, 421-22 it is fairly difficult for a public employee to obtain First Amendment protection.
The following five “tests” comprise the analysis: (1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech.
The Court in Dahlia opined that they had no choice but to follow the Huppert decision which held that police officers are acting as public employees when they report corruption because it is part of their duty to enforce the law. Huppert itself was based on a 1939 state court ruling that involved a quite different set of circumstances (officers could be terminated for “taking the Fifth” when subpoenaed to a Grand Jury).
Thus the Ninth Circuit ruled that, like Huppert, Dahlia was essentially acting in the course and scope of his job as a police officer when he reported the Portos scandal. Accordingly, he was speaking as a public employee not a private citizen and thus, he failed to meet the legal threshold for making s successful First Amendment violation claim.
The Dahlia opinion offered some excellent dicta regarding the ability of those placed on administrative leave to seek redress. The Court found that being “walked out of the building,” to use police parlance, could well be considered an adverse employment action that is, therefore, actionable.
We were certainly gratified that the Ninth Circuit saw fit to affirm the dismissal of this suit against our client Edgar Penaranda who was falsely accused of serious misconduct (we secured the dismissal of a related state court action against him, as well). Yet, we wonder about the “staying power” of the Huppert decision in light of the Court’s “significant reservations” about its holding as well as the effect of the Huppert (and nowDahlia) case on legitimate criticisms expressed by peace officers about, for example, their corrupt and ineffective department administrations.
