John Roe v. City of San Diego San Diego City Police Department David Bejarano George Saldamando Glenn Breitenstein

356 F.3d 1108 John ROE, Plaintiff-Appellant, v. CITY OF SAN DIEGO; San Diego City Police Department; David Bejarano; George Saldamando; Glenn Breitenstein, Defendants-Appellees. No. 02-55164. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 4, 2003. Filed January 29, 2004. Michael P. Baranic, Gattey Cooney & Baranic LLP, San Diego, CA, for the Plaintiff-Appellant. Penny L. Castleman, Deputy City Attorney, San Diego, A, for the Defendants-Appellees. Appeal from the United States District Court for the Southern District of California; Judith N. Keep, District Judge, Presiding. D.C. No. CV-01-01760-JNK. Before: D.W. NELSON, WARDLAW and FISHER, Circuit Judges. Opinion by Judge FISHER; Dissent by Judge WARDLAW. FISHER, Circuit Judge. 1 Plaintiff-Appellant John Roe, 1 while a San Diego police officer, videotaped himself stripping off a generic police officer's uniform and engaging in acts of masturbation. He offered these home-made videos for sale on the adults-only section of the popular online auction site eBay, using a fictitious name and a Northern California address. Although the videos did not reveal his connection with the San Diego Police…

Opinion by Judge FISHER; Dissent by Judge WARDLAW.

Plaintiff-Appellant John Roe, 1 while a San Diego police officer, videotaped him *1110 self stripping off a generic police officer’s uniform and engaging in acts of masturbation. He offered these home-made videos for sale on the adults-only section of the popular online auction site eBay, using a fictitious name and a Northern California address. Although the videos did not reveal his connection with the San Diego Police Department (the “Department”), Roe was unmasked when one of his supervisors discovered the videos online and recognized Roe’s picture. The Department confronted Roe, who readily admitted making and selling the videos, and eventually fired him. Roe sued the Department, the City of San Diego and his supervisors in federal district court under 42 U.S.C. § 1983 , alleging that his off-duty, non-work-related activities were protected by the First Amendment and could not be grounds for terminating his employment. The district court dismissed Roe’s claim, concluding that the videos did not address a matter of “public concern,” and thus the Department did not violate Roe’s constitutional rights by firing him. We conclude…

dissenting.

I respectfully dissent.

Today the majority announces that any speech by a public employee is protected *1123 as a matter of public concern from an adverse employment decision so long as it “does not fall within an unprotected category of speech,” “was not about private personnel matters, was directed to a segment of the general public, occurred outside the workplace and was not motivated by an employment-related grievance.” Ante, at 1121, 1122. The majority’s new connect-the-dots public concern test flatly ignores the nature and content of the expressive conduct at issue in this case, and so dilutes the “public concern” threshold for application of the Pickering balancing test as to read it out of existence. Although the majority purports to divine its sweeping new rule from United States v. National Treasury Employees Union (“NTEU”), 513 U.S. 454 , 115 S.Ct. 1003 , 130 L.Ed.2d 964 (1995), that case involved neither an adverse employment decision by the government as employer nor the public concern test. Because the majority’s astonishing new rule disregards the content of public employee speech and blurs the distinction between the government’s exercise of power as…