In Dahlia v. Rodriguez (9th Cir., Aug. 7, 2012, 10-55978) 2012 WL 3185693, the Ninth Circuit decided the First Amendment does not protect a police officer who told an outside agency some of his colleagues went too far during interrogations.
Angelo Dahlia, a detective for the Burbank Police Department, accused other officers of excessive interrogation tactics. He told the Los Angeles Sheriff's Department that officers squeezed a suspect’s throat and placing the barrel of a gun directly under the suspect’s eye. Dahlia also claimed he heard noises coming from the interrogation rooms including yelling and the sounds of someone being hit. Dahlia was later placed in administrative leave.
Dahlia filed a federal civil rights lawsuit alleging unconstitutional retaliation. The Court concluded Dahlia's actions, as a part of his public employment, were not protected by the First Amendment because he failed to establish that: 1) his speech was “spoken in the capacity of a private citizen and not a public employee”; and 2) that placement on administrative leave constitutes an adverse employment action. The Court relied heavily on Huppert v. City of Pittsburg, (9th Cir. 2009) 574 F.3d 696.
The Ninth Circuit looked at the precedent setting case of Garcetti v. Ceballos (2006) 547 U.S. 410, which held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Under Garcetti, the protection of the First Amendment is thus limited where the speech is “part of the core tasks that the employee is ‘paid to perform,’” but not where the speech is merely related to the speaker’s public employment.”
Huppert, decided after Garcetti, went further. There, the Court held police officers have a duty to blow the whistle because they must disclose information regarding alleged misconduct and corruption. The Court criticized the Huppert, but it was required to follow the rule. Thus, the Court held Dahlia was acting within his professional duties, and not as a public citizen, when he accused other officers of abusive interrogation tactics, and his speech was not protected under the First Amendment.
The Ninth Circuit did make one favorable ruling to police officers suing for retaliation. The Court decided “under some circumstances, placement on administrative leave can constitute an adverse employment action.” Importantly, the appeal was just about First Amendment rights. Other parts of the case dealt with state laws that also protect whistleblowers.
