Tatreau

MEMORANDUM **

The district court erred in granting summary judgment. There remain genuine issues of material fact as to whether the positions the plaintiffs sought within the LAPD were “confidential or policy-making,” which would exempt the defendants from liability for alleged First Amendment retaliation. Walker v. City of Lakewood, 272 F.3d 1114, 1131-32 (9th Cir.2001). Contrary to the district court’s findings, the job of a Los Angeles Police Department Commander is not a policy-making position. It is undisputed that Commanders do not make policy; they implement policy. Thus, the position lacks the delegated discretionary power that marks policymaking positions. See id. at 1132-33 .

However, genuine issues of material fact exist as to whether the position is “confidential.” The defendants assert that Commanders are “considered” members of the personal staff of the Chief of Police and who advise him on policy matters. Plaintiffs point out that Commanders are not staff, but civil service line employees, two positions removed from the Chief, and housed in different geographic locations. Thus, the record is not developed sufficiently to permit us to determine as a matter of law…