Angelo Dahlia v. Omar Rodriguez

concurring:

Burbank Police Department Detective Angelo Dahlia witnessed his fellow police officers physically abuse suspects in custody during a high profile robbery investigation. 1 Among other acts of misconduct, Detective Dahlia saw Lieutenant Rodriguez grab a suspect by the throat and threaten him by placing a gun under his eye. Detective Dahlia also witnessed Sergeant Peñaranda repeatedly punch a suspect.

When Detective Dahlia reported these acts of misconduct to Lieutenant Murphy, his superior officer, Murphy told Dahlia to “stop his sniveling.” When Dahlia persisted with his complaints, Murphy told him he “didn’t want to hear this shit again.” Before and then after Dahlia was interviewed by Internal Affairs, Lieutenant Rodriguez and Sergeant Peñaranda, his superior officers, threatened and intimidated him.

After the FBI became involved, Lieutenant Murphy told Detective Dahlia that “[t]he Feds are doing an investigation and heads are going to roll. Don’t say anything.” Sergeant Peñaranda likewise instructed Dahlia, “It’s gonna be bad. You can’t say anything.” Lieutenant Rodriguez admonished Detective Dahlia “not to talk to the feds.” He also warned Dahlia, “Fuck with me…

with whom

Seven years ago, the Supreme Court counseled us that we had “miseonceive[d] the theoretical underpinnings” of First Amendment retaliation law. Garcetti v. Ceballos, 547 U.S. 410, 423 , 126 S.Ct. 1951 , 164 L.Ed.2d 689 (2006). I respectfully dissent from the majority’s analysis because our court makes the same error today by rejecting what California law tells us about the professional duties of that state’s police officers. Furthermore, I fear that today’s new approach will lead to “judicial intervention in the conduct of governmental operations to a degree inconsistent with sound principles of federalism and the separation of powers.” Id. Federal courts have no business managing the daily activities of police departments.

I

We reheard this case en banc to consider whether Huppert v. City of Pittsburg, 574 F.3d 696 (9th Cir.2009), should remain good law. That case called on us to apply Garcetti’s holding that “when public employees make statements pursuant to their official duties, the. employees are not speaking as citizens for First Amendment purposes” to a lawsuit brought by a California police officer. 547 U.S. at 421 , 126 S.Ct. 1951 . We determined that the duty…

Opinion by Judge PAEZ; Concurrence by Judge PREGERSON; Concurrence by Judge O’SCANNLAIN.

OPINION

■ In this case we address the extent to which a police officer retains First Amendment protection when- he discloses his fellow officers’ misconduct. Angelo Dahlia, a detective in the Burbank Police Department (“BPD”), brought this 42 U.S.C. § 1983 First Amendment retaliation suit against the City of Burbank, the Chief of Police and several other police officers. The district court granted the defendants’ motions to dismiss the § 1983 cause of action for failure to state a claim. Fed. R.Civ.P. 12(b)(6). The court reasonéd that, under Huppert v. City of Pittsburg, 574 F.3d 696 (9th Cir.2009), Dahlia’s disclosure to the Los Angeles Sheriffs Department ' (“LASD”) of his fellow officers’ misconduct was not subject to First Amendment protection because he had a professional duty, as a matter of California case law, to report misconduct. The district court also held that Dahlia’s placement on administrative leave did not constitute an “adverse employment action.”

We reverse the district court on both grounds and overrule Huppert . We hold that (1) after Garcetti v. Ceballos, 547 U.S. 410,…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANGELO DAHLIA, No. 10-55978 Plaintiff-Appellant, D.C. No. v. 2:09-cv-08453-

MMM-JEM

OMAR RODRIGUEZ, individually and as a Lieutenant of the Burbank Police Department; EDGAR OPINION PENARANDA, individually and as a Sergeant of the Burbank Police Department; CITY OF BURBANK, a municipal corporation; JOHN MURPHY, individually and as a Lieutenant of the Burbank Police Department, Defendants-Appellees,

and

TIM STEHR, individually, Defendant.

Appeal from the United States District Court for the Central District of California Margaret M. Morrow, District Judge, Presiding

Argued and Submitted En Banc March 20, 2013—San Francisco, California Filed August 21, 2013

Before: Alex Kozinski, Chief Judge, and Harry Pregerson, Stephen Reinhardt, Diarmuid F. O’Scannlain, Susan P. Graber, Richard A. Paez, Marsha S. Berzon, Johnnie B. Rawlinson, Consuelo M. Callahan, Carlos T. Bea, and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Paez; Concurrence by Judge Pregerson; Concurrence by Judge O’Scannlain

SUMMARY*

Civil Rights

The en…