Angelo Dahlia v. Omar Rodriguez

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

2 DAHLIA V. RODRIGUEZ

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 banc court reversed the district court’s Fed. R.

Civ. P. 12(b)(6) dismissal and remanded in an action brought

by a City of Burbank police officer under 42 U.S.C. § 1983,

who alleged that he was placed on administrative leave in

retaliation for disclosing his fellow officers’ misconduct.

The court overruled Huppert v. City of Pittsburg,

574 F.3d 696 (9th Cir. 2009). The court held that (1) after

Garcetti v. Ceballos, 547 U.S. 410 (2006), courts must make

a “practical” inquiry when determining the scope of a

government employee’s professional duties and that Huppert

erred in concluding that California broadly defines police

officers’ duties as a matter of law for the purpose of First

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

DAHLIA V. RODRIGUEZ 3

Amendment retaliation analysis; and (2) placement on

administrative leave can constitute an adverse employment

action. The court further held that, on remand, plaintiff could

renew his request for leave to amend his complaint to allege

more explicitly which acts were protected by the First

Amendment and which acts constituted adverse employment

actions.

Specially concurring, Judge Pregerson stated that

plaintiff’s speech that reported unlawful acts by his fellow

officers was protected under the First Amendment from

retaliation by his superior officers at the Burbank Police

Department regardless of whether he reported the police

abuse up the chain of command or outside the chain of

command.

Concurring only in the judgment, Judge O’Scannlain,

joined by Chief Judge Kozinski, stated that he agreed that

plaintiff was entitled to be granted leave to amend his

complaint and it was on that narrow basis that he would

reverse the district court’s judgment. Judge O’Scannlain

dissented from the majority’s analysis, stating that with its

decision to discard Huppert, and with its newly-minted

“guiding principles” for identifying protected speech, the

majority opinion reopened doors that the Supreme Court

slammed shut in Garcetti v. Ceballos, 547 U.S. 410 (2006).

4 DAHLIA V. RODRIGUEZ

COUNSEL

Michael A. Morguess (argued), Michael A. McGill, and

Russell M. Perry of Lackie, Dammeier & McGill, Upland,

California; Scott Michelman and Scott L. Nelson, Public

Citizen Litigation Group, Washington, D.C., for Plaintiff-

Appellant Angelo Dahlia.

Steven J. Renick (argued) and Eugene P. Ramirez of

Manning & Kass, Ellrod, Ramirez, Trester, LLP, Los

Angeles, California, for Defendant-Appellee Jon Murphy.

Ken Yuwiler and Michael Simidjian of Silver, Hadden,

Silver, Wexler & Levine, Santa Monica, California, for

Defendant-Appellee Omar Rodriguez.

Michael Logan Rains, Harry S. Stern, and Lara Cullinane-

Smith of Rains, Lucia, Stern, PC, Pleasant Hill, California,

for Defendant-Appellee Edgar Penaranda.

Richard R. Terzian of Burke, Williams & Sorensen, LLP, Los

Angeles, California, for Defendant-Appellee City of Burbank.

Michael P. Stone and Muna Busailah of Riverside Sheriffs’

Association Legal Defense Trust, Pasadena, California, for

Amicus Curiae Riverside Sheriffs’ Association and Riverside

Sheriffs’ Association Legal Defense Trust.

DAHLIA V. RODRIGUEZ 5

OPINION

PAEZ, Circuit Judge:

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 reasoned that,

under Huppert v. City of Pittsburg, 574 F.3d 696 (9th Cir.

2009), Dahlia’s disclosure to the Los Angeles Sheriff’s

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, 424 (2006), courts must make a “practical”

inquiry when determining the scope of a government

employee’s professional duties and that Huppert erred in

concluding that California broadly defines police officers’

duties as a matter of law for the purpose of First Amendment

retaliation analysis; and (2) placement on administrative leave

can constitute an adverse employment action. We further

hold that, on remand, Dahlia may renew his request for leave

to amend his complaint to allege more explicitly which acts

6 DAHLIA V. RODRIGUEZ

are protected by the First Amendment and which acts

constitute adverse employment actions.

I. FACTUAL AND PROCEDURAL BACKGROUND

A.1

Following an armed robbery on December 28, 2007, at

Porto’s Bakery & Café in Burbank, California, Dahlia was

assigned to assist in the robbery investigation, which was

supervised by defendant Lieutenant Jon Murphy. The day

after the robbery, Dahlia observed defendant Lieutenant

Omar Rodriguez grab a suspect by the throat with his left

hand, retrieve his handgun from its holster with his right

hand, and place the barrel of the gun under the suspect’s eye,

saying, “How does it feel to have a gun in your face

motherfucker.” Rodriguez noticed Dahlia looking on in

disbelief. Later that same evening, Dahlia heard yelling and

the sound of someone being hit and slapped from inside a

room where defendant Sergeant Edgar Penaranda was

interviewing another suspect.2

Dahlia was subsequently excluded from participating in

suspect interviews, and high-ranking officers within BPD

essentially took control of the investigation. Witnesses and

suspects continued to be physically assaulted and beaten in

1

The following factual background is drawn from the allegations of

Dahlia’s complaint. Because Dahlia’s complaint was dismissed under

Federal Rule of Civil Procedure 12(b)(6), we take his factual allegations

as true for the purposes of our review. TwoRivers v. Lewis, 174 F.3d 987,

991 (9th Cir. 1999).

2

Murphy, Rodriguez and Penaranda were all high-ranking supervisors

who outranked Dahlia.

DAHLIA V. RODRIGUEZ 7

BPD’s interview rooms, while officers prevented anyone

from walking past the rooms or into the audio room. Dahlia

met with Murphy to disclose the abuse that he had witnessed.

Dahlia told Murphy that the interviews were getting too

physical and that Dahlia was having difficulty maintaining

order in the investigation. Murphy responded by telling

Dahlia to “stop his sniveling.”

The physical beatings continued in BPD interview rooms

and in the field, evidenced by the booking photos of various

suspects. At one point, Chief of Police Stehr appeared at a

briefing and, upon learning that not all of the robbery

suspects were in custody, said, “Well then beat another one

until they are all in custody.”

After witnessing the misconduct and abuse, Dahlia

approached Murphy a second time and pleaded that he did not

have control over the case. Murphy became upset and told

Dahlia that he “didn’t want to hear this shit again” and that he

was “tired of all the B.S.” In January 2008, Dahlia and

another detective met with Murphy a third time, telling him

that “the beatings have to stop” and “the madness ha[s] to

stop.” Murphy did nothing to respond to these complaints

and the abusive tactics continued.

In April 2008 officers learned that BPD’s Internal Affairs

(“IA”) unit was planning to investigate the unlawful physical

abuse and the other illegal procedures relating to the Porto’s

robbery investigation. Around the same time, Rodriguez

began going out of his way to monitor Dahlia and ultimately

threatened him not to say anything to IA. As the IA

investigation grew nearer, Rodriguez and Penaranda

contacted Dahlia on a daily basis, threatening him to keep

quiet. Before the IA investigation commenced, Chief Stehr

8 DAHLIA V. RODRIGUEZ

told an IA lieutenant, “I put you in this position to make it go

away.”

On April 29, 2008, Dahlia was interviewed for the first

time by IA. Immediately after the interview, Rodriguez

confronted Dahlia and demanded to know what Dahlia had

said during the interview. Dahlia’s complaint is silent

regarding what he actually said during the IA interview,

though he told Rodriguez, out of fear, that he did not say

anything to IA. When asked by Penaranda if he had disclosed

anything to IA, Dahlia, out of fear for his safety, also told

Penaranda that he had not.

On May 8, 2008, IA interviewed Dahlia a second time.

After the interview, Dahlia received a call from Rodriguez

directing him to report to a park. Dahlia went to the park,

believing that there was an incident occurring, but

encountered only Rodriguez and another officer there.

Rodriguez approached him aggressively and asked, “What the

fuck did you tell them?” Rodriguez then asked, almost

verbatim, the questions posed by IA and attempted to

intimidate Dahlia into revealing his answers. Rodriguez,

Penaranda and another officer incessantly harassed,

intimidated and threatened Dahlia over the following weeks,

to the point where his working conditions were “fully

consumed” by the intimidation.

On May 21, 2008, IA interviewed Dahlia a third time.

Immediately after the interview, Rodriguez appeared and

aggressively stared directly at Dahlia. The threats and

intimidation continued during the subsequent months.

DAHLIA V. RODRIGUEZ 9

Toward the end of 2008, Penaranda and Murphy told Dahlia

that a federal investigation into the Porto’s robbery might be

forthcoming and warned Dahlia not to disclose anything to

federal investigators. In January 2009, rumors circulated

more widely that the FBI had been contacted about

commencing an investigation. At some point, Murphy told

Dahlia, “It’s on. The Feds are doing an investigation and

heads are going to roll. Don’t say anything.” Penaranda told

Dahlia, “It’s gonna be bad. You can’t say anything.”

Rodriguez also approached Dahlia and told him “not to talk

to the feds.” The complaint alleges neither that the FBI

actually commenced an investigation nor that Dahlia ever

spoke to the FBI.

On April 2, 2009, Rodriguez called Dahlia into his office,

told Dahlia to sit down, and closed the door and the blinds.

Rodriguez then retrieved his gun from its holster, looked at

Dahlia, and placed the gun in a drawer. At one point during

the meeting, Rodriguez placed his hands on the desk and told

Dahlia, “I’m not a fucking cheese eating rat” and then

commented that he was not afraid of being suspended or

fired. Rodriguez also leaned forward and said, “Fuck with

me and I will put a case on you, and put you in jail. I put all

kinds of people in jail, especially anyone who fucks with

me!” Dahlia reported this incident to the Burbank Police

Officers’ Association president, who reported it to the

Burbank City Manager.

On May 11, 2009, LASD interviewed Dahlia about the

Porto’s robbery investigation. During the interview, Dahlia

disclosed the defendants’ misconduct, threats, intimidation

and harassment. Four days later, Dahlia was placed on

administrative leave pending discipline.

10 DAHLIA V. RODRIGUEZ

Dahlia alleges that he was subjected to adverse

employment actions as a result of his protected speech

activities and that there was no legitimate justification for the

adverse actions. In alleging a § 1983 violation, Dahlia claims

that defendants’ retaliatory acts included, inter alia, threats,

ostracism, denial of employment opportunities, undue

scrutiny of work performance, denial of continued

employment, and malicious statements calculated to destroy

his reputation.

B.

Dahlia filed his § 1983 complaint in November 2009,

alleging seven claims: (1) retaliation against a public

employee for speech disclosing police misconduct, in

violation of the First Amendment; (2) retaliation against a

public employee for disclosing information to a government

or law enforcement agency, in violation of California Labor

Code section 1102.5; (3) retaliation against a public employee

for making an oral or written complaint to a governmental

agency, in violation of California Labor Code section 6310;

(4) retaliation against a public employee for disclosing an

abuse of authority or a substantial and specific danger to

public health or safety, in violation of California Government

Code section 53298; (5) a violation of the Bane Act,

California Civil Code section 52.1(b), which prohibits

interference with the exercise of constitutional rights; (6)

intentional infliction of emotional distress; and (7) negligent

infliction of emotional distress. Dahlia sued the City of

Burbank, Police Chief Stehr, Lieutenants Murphy and

Rodriguez, Sergeants Penaranda and Jose Duran, and

Detective Chris Canales.

DAHLIA V. RODRIGUEZ 11

Police Chief Stehr moved for summary judgment on

several grounds, including qualified immunity. The district

court denied without prejudice, as premature, Stehr’s

summary judgment motion because Dahlia had not yet had an

adequate opportunity to conduct discovery. Stehr pursued an

interlocutory appeal of the district court’s denial of his

motion for summary judgment. The original three-judge

panel in this case reversed the denial of qualified immunity

for Stehr in an unpublished memorandum disposition. Dahlia

v. Stehr, 491 F. App’x 799 (9th Cir. 2012).

The remaining individual defendants moved, primarily

relying on Huppert, to dismiss the case for failure to state a

claim. Fed. R. Civ. P. 12(b)(6). Granting these motions, the

district court determined that Dahlia’s § 1983 claim was

barred because (1) he spoke pursuant to his official duties and

thus was not constitutionally protected, and (2) placement on

paid administrative leave is not an adverse employment

action. The district court accordingly dismissed Dahlia’s

§ 1983 claim with prejudice, and declined to exercise

supplemental jurisdiction over Dahlia’s state law claims.

A panel of this court reluctantly affirmed on the ground

that it was bound by Huppert v. City of Pittsburg to conclude

that Dahlia spoke pursuant to his official duties. Dahlia v.

Rodriguez, 689 F.3d 1094 (9th Cir. 2012). In no uncertain

terms, the panel stated that “[t]he reasoning in Huppert that

professional duties can be determined as a matter of law is

wrong, and the result that reports of police misconduct are not

protected by the First Amendment is dangerous.” Id. at

1106–07. Contrary to the district court, the panel found that

placement on administrative leave and the resulting

consequences, “if proven, . . . may very well constitute an

12 DAHLIA V. RODRIGUEZ

adverse employment action.” Id. at 1107. Upon a majority

vote of eligible judges, we granted rehearing en banc.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291 to review

the district court’s final judgment dismissing with prejudice

Dahlia’s claims against Murphy, Penaranda, Rodriguez and

the City of Burbank.3 We review de novo the district court’s

dismissal of Dahlia’s complaint for failure to state a claim

under Federal Rule of Civil Procedure 12(b)(6). Balistreri v.

Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). In

undertaking this review, “we must accept all factual

allegations of the complaint as true and draw all reasonable

inferences in favor of the nonmoving party.” TwoRivers,

174 F.3d at 991. Dismissal under Rule 12(b)(6) is

inappropriate unless Dahlia’s complaint fails to “state a claim

to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007).

III. ANALYSIS

“It is well settled that the state may not abuse its position

as employer to stifle ‘the First Amendment rights [its

employees] would otherwise enjoy as citizens to comment on

matters of public interest.’” Eng v. Cooley, 552 F.3d 1062,

1070 (9th Cir. 2009) (alteration in original) (quoting

Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)).

Moreover, the public has a strong interest in hearing from

public employees, especially because “[g]overnment

employees are often in the best position to know what ails the

3

Prior to en banc oral argument, Dahlia dismissed his appeal against the

other named defendants, Canales and Duran.

DAHLIA V. RODRIGUEZ 13

agencies for which they work.” Waters v. Churchill,

511 U.S. 661, 674 (1994). It may often be the case that,

unless public employees are willing to blow the whistle,

government corruption and abuse would persist undetected

and undeterred.

In Pickering, the Supreme Court defined a balancing test

for First Amendment retaliation cases involving public

employees. The task for us is to seek “a balance between the

interests of the [employee], as a citizen, in commenting upon

matters of public concern and the interest of the State, as an

employer, in promoting the efficiency of the public services

it performs through its employees.” Pickering, 391 U.S. at

568; see also Connick v. Myers, 461 U.S. 138, 142 (1983).

The Court has recognized that “the First Amendment interests

at stake extend beyond the individual speaker . . . [because of]

the importance of promoting the public’s interest in receiving

the well-informed views of government employees engaging

in civic discussion.” Garcetti, 547 U.S. at 419. In the classic

whistleblower case the state has no legitimate interest in

covering up corruption and physical abuse. As an inevitable

result of the Court’s jurisprudence and sound public policy,

the First Amendment generally protects public employee

whistleblowers from employer retaliation.

But our inquiry does not end there. In unraveling the case

law since Pickering, we have further refined the Court’s

balancing test into a five-step inquiry. We ask:

(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

14 DAHLIA V. RODRIGUEZ

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.

Eng, 552 F.3d at 1070.4

In this case, we can easily answer the first question.

Dahlia’s speech—reporting police abuse and the attempts to

suppress its disclosure—is quintessentially a matter of public

concern. See Connick, 461 U.S. at 148 (noting that speech

warrants protection when it “seek[s] to bring to light actual or

potential wrongdoing or breach of public trust”); Thomas v.

City of Beaverton, 379 F.3d 802, 809 (9th Cir. 2004) (finding

that “[u]nlawful conduct by a government employee or illegal

activity within a government agency is a matter of public

concern”); see also Jackler v. Byrne, 658 F.3d 225, 236 (2d

Cir. 2011) (noting that “‘[e]xposure of official misconduct,

especially within the police department, is generally of great

4

We have sometimes described the Eng steps as “sequential.” See, e.g.,

Johnson, 658 F.3d at 961; Robinson, 566 F.3d at 822; Eng, 552 F.3d at

1070. We now clarify that, by “sequential,” we mean only that all the

factors are necessary, in the sense that failure to meet any one of them is

fatal to the plaintiff’s case. See, e.g., Desrochers v. City of San

Bernadino, 572 F.3d 703, 709–19 (9th Cir. 2009) (holding that plaintiffs

could not show their speech covered a matter of public concern, and

therefore could not state a First Amendment retaliation claim, without

addressing the other Eng steps). That all five factors are necessary does

not mean that courts must always go through the steps in the same order

that they are listed in Eng. To the contrary, precisely because all five

factors are independently necessary, it may be more efficient in some

instances to answer a potentially dispositive question further down the Eng

list first.

DAHLIA V. RODRIGUEZ 15

consequence to the public’” (quoting Branton v. City of

Dallas, 272 F.3d 730, 740 (5th Cir. 2001))), cert. denied,

132 S. Ct. 1634 (2012); Marable v. Nitchman, 511 F.3d 924,

932 (9th Cir. 2007) (finding it “worth noting that an

employee’s charge of high level corruption in a government

agency has all of the hallmarks that we normally associate

with constitutionally protected speech . . . and criticisms of

the government lie at or near the core of what the First

Amendment aims to protect”).5

The district court, however, ruled that Dahlia’s § 1983

First Amendment claim was barred because it found that (1)

as a matter of law, Dahlia could not establish that he spoke

“in the capacity of a private citizen and not a public

employee,” Eng, 552 F.3d at 1071; and (2) being placed on

administrative leave does not constitute an adverse

employment action for the purposes of the First Amendment.

We disagree with both conclusions and analyze them in turn.

A. Speech as a Private Citizen

1.

In Garcetti, the Supreme Court narrowed the First

Amendment protections for public employees. 547 U.S. 410.

The Court added an additional requirement to the Pickering

5

In addressing the “public concern” prong of Eng, we clarified that “[i]t

is not determinative that [a plaintiff] did not air his concerns publicly.”

Anthoine v. N. Cent. Cntys. Consortium, 605 F.3d 740, 749 (9th Cir.

2010); see also Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410,

415–16 (1979) (noting that “[n]either the [First] Amendment itself nor our

decisions indicate that this freedom is lost to the public employee who

arranges to communicate privately with his employer rather than to spread

his views before the public”).

16 DAHLIA V. RODRIGUEZ

balancing test, holding that the First Amendment does not

protect employee speech when that speech is “pursuant to . . .

official duties.” Id. at 421. This requirement is captured by

the second prong of our test set forth in Eng, 552 F.3d at

1070. Whether Dahlia’s speech is protected by the First

Amendment is rooted in the Court’s analysis in Garcetti.

In Garcetti, plaintiff Ceballos was a deputy district

attorney for Los Angeles County assigned as a calendar

deputy during the relevant period. 547 U.S. at 413. A

defense attorney contacted Ceballos and asked him to

investigate inaccuracies in a critical police affidavit. Id.

“According to Ceballos, it was not unusual for defense

attorneys to ask calendar deputies to investigate aspects of

pending cases.” Id. at 414. After investigating the alleged

inaccuracies, “Ceballos determined the affidavit contained

serious misrepresentations,” which he reported to his

supervisor. Id. He “followed up by preparing a disposition

memorandum” and an additional memo to his supervisor. Id.

After a heated meeting attended by Ceballos, his supervisor

and the affiant, the supervisor decided to proceed with the

prosecution. Id. Ceballos brought a § 1983 First Amendment

retaliation claim challenging the imposition of adverse

employment actions in the aftermath of these events. Id. at

415.

In rejecting Ceballos’ claim, the Court 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.” Id. at 421.

The Court said that “[t]he controlling factor in Ceballos’ case

is that his expressions were made pursuant to his duties as a

calendar deputy.” Id. Importantly, the Court noted that “the

DAHLIA V. RODRIGUEZ 17

parties in this case do not dispute that Ceballos wrote his

disposition memo pursuant to his employment duties. We

thus have no occasion to articulate a comprehensive

framework for defining the scope of an employee’s duties in

cases where there is room for serious debate.” Id. at 424.6

The Court further explained that various easy heuristics

are insufficient for determining whether an employee spoke

pursuant to his professional duties. The Court said that it was

“not dispositive” that “Ceballos expressed his views inside

his office, rather than publicly. . . . Employees in some cases

may receive First Amendment protection for expressions

6

Although it was not essential to finding that Ceballos acted pursuant

to his professional duties in preparing the memorandum to his supervisor,

the Court offered further explanation:

[T]he fact that Ceballos spoke as a prosecutor fulfilling

a responsibility to advise his supervisor about how best

to proceed with a pending case [] distinguishes

Ceballos’ case from those in which the First

Amendment provides protection against discipline. . . .

Ceballos wrote his disposition memo because that is

part of what he, as a calendar deputy, was employed to

do. . . . Ceballos did not act as a citizen when he went

about conducting his daily professional activities, such

as supervising attorneys, investigating charges, and

preparing filings. In the same way he did not speak as

a citizen by writing a memo that addressed the proper

disposition of a pending criminal case. When he went

to work and performed the tasks he was paid to

perform, Ceballos acted as a government employee.

The fact that his duties sometimes required him to

speak or write does not mean his supervisors were

prohibited from evaluating his performance.

Garcetti, 547 U.S. at 421–22 (paragraph breaks omitted).

18 DAHLIA V. RODRIGUEZ

made at work.” Id. at 420. It was also “nondispositive” that

“[t]he memo concerned the subject matter of Ceballos’

employment. . . . The First Amendment protects some

expressions related to the speaker’s job.” Id. at 421.

Additionally, the Court rejected “the suggestion that

employers can restrict employees’ rights by creating

excessively broad job descriptions. Id. at 424. The Court

concluded:

The proper inquiry is a practical one. Formal

job descriptions often bear little resemblance

to the duties an employee actually is expected

to perform, and the listing of a given task in

an employee’s written job description is

neither necessary nor sufficient to

demonstrate that conducting the task is within

the scope of the employee’s professional

duties for First Amendment purposes.

Id. at 424–25 (citation omitted).7

7

Judge O’Scannlain’s concurrence suggests that there should be a

“bright line” between citizen-speech and employee-speech. O’Scannlain

Concurrence at 49–50, id. at 49 n.2 (noting that “[t]he dissenters in

Garcetti, as well as the academic literature since, recognize the bright-line

nature of the inquiry”). We do not take issue with the straight-forward

proposition that Garcetti altered the Pickering balancing approach by

recognizing that once a plaintiff’s speech is classified as having been

made pursuant to an employee’s official duties, then such speech is

categorically denied First Amendment protection. See O’Scannlain

Concurrence at 49 n.2 and citations therein. However, this bright-line rule

only begs the question of whether a plaintiff actually spoke pursuant to his

official duties. It is that inquiry that is before us here, and Garcetti

explicitly said that there is no bright line rule for making that

determination. As Judge O’Scannlain quotes: “‘Employees in some cases

may receive First Amendment protection for expressions made at work.’”

DAHLIA V. RODRIGUEZ 19

Three years after Garcetti, a panel of this court decided

Huppert v. City of Pittsburg, another § 1983 First

Amendment retaliation case. The Huppert majority affirmed

the grant of summary judgment to the defendant, holding that

California police officers acted pursuant to their official

duties when they investigated and reported on corruption

within the police department by (1) assisting the District

Attorney as ordered, (2) defying the police chief’s orders and

continuing an investigation at the behest of an immediate

supervisor, (3) cooperating with the FBI, and (4) testifying

before a grand jury. 574 F.3d at 698–700, 703, 706–08.

Although the Huppert majority engaged in the requisite

“practical” inquiry in determining that the officers acted

pursuant to their official duties as to the first two speech acts,

id. at 703–06,8 it relied on a 1939 California court of appeal

O’Scannlain Concurrence at 50 (quoting Garcetti, 547 U.S. at 420

(emphasis in O’Scannlain Concurrence)). Indeed, in the only portion of

the opinion dealing with how to define the scope of an employee’s job

duties, the Garcetti Court exclusively pointed to non-dispositive factors.

547 U.S. at 424–25.

8

As to the first issue in Huppert, the majority considered the factual

record and determined that the undisputed facts (including an admission

by the plaintiff, Huppert) enabled it to conclude as a matter of law that

Huppert assisted the District Attorney pursuant to his professional duties.

574 F.3d at 703–06.

As to the second issue, although the dissent disagreed, the majority

similarly concluded that, based on the undisputed facts, the plaintiff

officers investigated corruption and prepared a report for the police chief

and the city manager pursuant to their professional duties. Id. at 706; id.

at 720 (W. Fletcher, J., dissenting). In concluding that there was a

disputed question of fact as to the scope of the plaintiffs’ duties, the

dissent pointed out that the police chief had instructed the plaintiffs to

cease their investigation whereas the plaintiffs’ direct supervisor had

20 DAHLIA V. RODRIGUEZ

decision to conclude, as a matter of law, that an officer acted

pursuant to his official duties in cooperating with the FBI and

testifying before a grand jury, id. at 706–10 (relying on

Christal v. Police Comm’n of City of San Francisco, 92 P.2d

416 (Cal. Dist. Ct. App. 1939)).9

instructed the opposite. Id. at 720 (W. Fletcher, J., dissenting). We hold,

infra, that in determining the scope of a plaintiff’s job duties, a fact-finder

should consider the instructions given to a plaintiff by his superiors. To

the extent that Huppert can be read to preclude this consideration, we

overrule it.

9

The full passage from Christal relied upon by the Huppert majority

reads like a civics textbook:

“The duties of police officers are many and varied.

Such officers are the guardians of the peace and

security of the community, and the efficiency of our

whole system, designed for the purpose of maintaining

law and order, depends upon the extent to which such

officers perform their duties and are faithful to the trust

reposed in them. Among the duties of police officers

are those of preventing the commission of crime, of

assisting in its detection, and of disclosing all

information known to them which may lead to the

apprehension and punishment of those who have

transgressed our laws. When police officers acquire

knowledge of facts which will tend to incriminate any

person, it is their duty to disclose such facts to their

superiors and to testify freely concerning such facts

when called upon to do so before any duly constituted

court or grand jury. It is for the performance of these

duties that police officers are commissioned and paid

by the community.”

Huppert, 574 F.3d at 707 (quoting Christal, 92 P.2d at 419).

DAHLIA V. RODRIGUEZ 21

In relying on Christal’s sweeping description of a

California police officer’s professional duties, the Huppert

majority failed to heed Garcetti’s mandate that “the proper

inquiry [to determine the scope of an employee’s professional

duties] is a practical one.” Garcetti, 547 U.S. at 424. The

Court’s stated reason for requiring such an inquiry is

precisely because “employers [cannot] restrict employees’

rights by creating excessively broad job descriptions.” Id.

Relying on a broad court-created job description applicable

to every member of a profession operates to do just that.

Moreover, even if Christal’s formulation of California police

officers’ duties remains generally accurate, “the listing of a

given task in an employee’s written job description is neither

necessary nor sufficient to demonstrate that conducting the

task is within the scope of the employee’s professional duties

for First Amendment purposes.” Id. at 425.

Given the factual similarities here, the three-judge panel

in this case, although expressing disagreement with Huppert,

concluded that it was bound by it. We overrule Huppert to

the extent that it improperly relied on a generic job

description and failed to conduct the “practical,” fact-specific

inquiry required by Garcetti. In so holding, we reject the

defendants’ argument that California police officers are

unique for the purposes of First Amendment retaliation

claims. See Kannisto v. City of San Francisco, 541 F.2d 841,

843 (9th Cir. 1976) (noting in a § 1983 First Amendment

retaliation case that “[t]he Supreme Court has made it clear

that ‘policemen, like teachers and lawyers . . . are not

relegated to a watered-down version of constitutional rights.’

Garrity v. New Jersey, 385 U.S. 493, 500 (1967)”).

22 DAHLIA V. RODRIGUEZ

2.

We also reject Judge O’Scannlain’s—and the

defendants’—argument that Christal and its progeny are

controlling here for the additional reason that the authority he

cites is inapposite. Although Judge O’Scannlain’s

concurrence does not mention it, O’Scannlain Concurrence at

53–56, Christal explicitly limited its holding to whether

police officers who were being investigated for criminal

activities could assert their Fifth Amendment right against

self-incrimination and still remain police officers. 92 P.2d at

418–19 (“We are concerned here only with the result of the

exercise of [the Fifth Amendment] privilege, by those holding

the positions of police officers, in an investigation by which

it was sought to determine whether such officers had been

guilty of criminal activities in connection with their duties as

police officers.”). Even were we to ignore its limited holding,

Christal explicitly stated that officers have a “duty to disclose

such facts to their superiors.” Id. at 419 (emphasis added).

Therefore, even over-reading Christal’s dicta, and then

applying it in clear violation of Garcetti, would not resolve

this case.

The thrust of Judge O’Scannlain’s argument—like that of

the defendants—is that police officers are unique under

California law for the purpose of First Amendment retaliation

claims. This is true, he argues, because California police

officers have a freestanding professional duty to disclose the

unlawful conduct of others to their superiors as well as to

outside law enforcement agencies. O’Scannlain Concurrence

at 53–56. Yet neither the case law nor the statute on which he

relies supports this proposition.

DAHLIA V. RODRIGUEZ 23

Rather, the California cases cited by defendants—a subset

of which Judge O’Scannlain relies on—stand for the

unsurprising proposition that a public employee cannot, when

ordered, refuse to comply with a lawful investigation and

escape discipline for so doing. As the California courts have

reiterated even outside the policing context, “‘[a] public

employee, of course, cannot be forced to give an answer

which may tend to incriminate him, but he may be required

to choose between disclosing information and losing his

employment.’” Hingsbergen v. State Pers. Bd., 50 Cal. Rptr.

59, 64 (Cal. Dist. Ct. App. 1966) (quoting Steinmetz v. Cal.

State Bd. of Educ., 285 P.2d 617, 621–22 (Cal. 1955) (en

banc)). Hingsbergen, for example, was not a police officer,

but an employee of the California Department of Motor

Vehicles (“DMV”). Id. at 60. He was dismissed for “willful

disobedience” because he refused to answer questions when

he was ordered to cooperate in an investigation by the state

attorney general’s office and the local district attorney into

malfeasance within the DMV. Id. at 61. Indeed, as

Hingsbergen indicates, any public employee may face

discipline for stonewalling, against orders to comply, a

properly conducted investigation into misconduct within his

department. The California cases and statute cited by Judge

24 DAHLIA V. RODRIGUEZ

O’Scannlain stand for nothing further.10 See O’Scannlain

Concurrence at 53–53, 65.

That an officer could be disciplined for failing to comply

with an order only begs the question in Dahlia’s case. Here,

the only allegations in the record are that Dahlia was ordered

not to comply with an investigation.11

10

California Government Code section 3304(a) provides in part:

Nothing in this section shall preclude a head of an

agency from ordering a public safety officer to

cooperate with other agencies involved in criminal

investigations. If an officer fails to comply with such

an order, the agency may officially charge him or her

with insubordination.

Cal. Gov’t Code § 3304. See Riverside Cnty. Sheriff’s Dep’t v. Zigman,

87 Cal. Rptr. 3d 358 (Cal. Ct. App. 2008) (holding that a police officer

could not invoke the marital privilege in an administrative investigation

into her police officer husband’s theft and use of methamphetamine and

avoid discipline pursuant to departmental policy); Alhambra Police

Officers Ass’n v. City of Alhambra Police Dep’t, 7 Cal. Rptr. 3d 432, 438

(Cal. Ct. App. 2003) (holding that California’s Public Safety Officers

Procedural Bill of Rights Act did not permit a police union representative

to “locate and remove documentary evidence pertaining to the misconduct

investigation of another officer and then to return the evidence to the

officer accused of misconduct—in admitted contravention of department

rules and procedures”); Titus v. L.A. Cnty. Civil Serv. Comm’n., 181 Cal.

Rptr. 699 (Cal. Ct. App. 1982) (holding that a police officer who also

acted as an attorney could not invoke the attorney-client privilege and

impede an investigation by his police department into his client’s illegal

activity and simultaneously avoid being sanctioned for doing so).

11

The other California cases cited by Judge O’Scannlain and the

defendants, as in Christal, invariably involve a police officer trying to

avoid incriminating himself. That a police officer cannot hide from the

law and simultaneously keep his badge does not imply that an officer has

a freestanding professional duty to report the unlawful activity of others.

DAHLIA V. RODRIGUEZ 25

3.

Our case law since Garcetti provides further guidance. In

Posey, we analyzed a § 1983 First Amendment retaliation

claim brought by a high school security guard against the

school district that was dismissed on summary judgment.

Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121,

1123 (9th Cir. 2008). Considering the divergent views of

other circuits, we concluded that “after Garcetti the inquiry

into the protected status of speech presents a mixed question

of fact and law, and specifically that the question of the scope

and content of a plaintiff’s job responsibilities is a question of

fact.” Id. at 1130. Therefore we held that, “when there are

genuine and material disputes as to the scope and content of

the plaintiff’s job responsibilities, the court must reserve

judgment on [whether the plaintiff’s speech was pursuant to

his official duties] . . . until after the fact-finding process.”

Id. at 1131; see also Robinson v. York, 566 F.3d 817, 823–24

(9th Cir. 2009) (holding that the “scope of [the plaintiff’s] job

duties is a question of fact”); Eng, 552 F.3d at 1071 (noting

that “the question of the scope and content of a plaintiff’s job

responsibilities is a question of fact” (internal quotation

marks omitted)); Freitag v. Ayers, 468 F.3d 528, 546 (9th Cir.

See Szmaciarz v. Cal. State Pers. Bd., 145 Cal. Rptr. 396 (Cal. Dist. Ct.

App. 1978) (holding that a correctional officer was properly disciplined

when he refused to answer questions or submit to a polygraph during an

investigation into his use and transport of marijuana into a prison);

Fichera v. Cal. State Pers. Bd., 32 Cal. Rptr. 159 (Cal. Dist. Ct. App.

1963) (holding that a state police officer was properly terminated for

refusing to take a polygraph test in the investigation of an accusation

against him); Frazee v. Civil Serv. Bd. of City of Oakland, 338 P.2d 943

(Cal. Dist. Ct. App. 1959) (same as to a local police officer).

26 DAHLIA V. RODRIGUEZ

2006) (holding that determining the scope of professional

duties requires “factual determinations”).12

In Posey, we then held that the district court erred in

granting summary judgment to the school district. We

reasoned that there was a genuine dispute as to whether Posey

acted pursuant to his official duties when he expressed his

concern about school security in a letter to district

12

As we recognized in Posey, our view that “the scope and content of

a plaintiff’s job responsibilities is a question of fact” is consistent with

holdings of the Third, Seventh, and Eighth Circuits, but not with that of

the Fifth, Tenth, and D.C. Circuits. 546 F.3d at 1128–30. We continue

to adhere to our view and note that when an inquiry “is a mixed question

of law and fact, . . . it often will be inappropriate to take the question from

the jury.” Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, 554 (1997).

Moreover, even several of the circuits that classify the inquiry into the

scope of professional duties as a “question of law” nevertheless undertake

a tailored, fact-specific assessment of a plaintiff’s professional

circumstances. See, e.g., Charles v. Grief, 522 F.3d 508, 512–14 (5th Cir.

2008) (analyzing plaintiff’s particular professional role and duties, even

though the ultimate question of whether speech is entitled to protection is

considered a legal question); Brammer-Hoelter v. Twin Peaks Charter

Acad., 492 F.3d 1192, 1204–05 (10th Cir. 2007) (analyzing the contents

of teachers’ contracts and parsing aspects of their speech to classify

comments on, e.g., their school’s “expectations regarding student

behavior” as unprotected speech and comments on, e.g., “staffing levels”

at the school as protected speech); Wilburn v. Robinson, 480 F.3d 1140,

1150–51 (D.C. Cir. 2007) (conducting factual inquiry into nature of

plaintiff’s particular professional responsibilities).

Since Posey, the Fourth Circuit reversed the dismissal under Rule

12(b)(6) of a police officer’s § 1983 First Amendment retaliation claim

because “the question whether the [plaintiff’s internal memorandum that

he released to the press] . . . was written as part of his official duties was

a disputed issue of material fact.” Andrew v. Clark, 561 F.3d 261, 267

(4th Cir. 2009).

DAHLIA V. RODRIGUEZ 27

administrators. Posey, 546 F.3d at 1124. The parties

disputed whether Posey’s duties included writing such

internal communications about school security. Id. at

1124–25 (noting that the district argued that providing

“reports and information about security matters at the high

school” was “an inherent part of his duties,” while Posey

contended that “his role in student discipline did not extend

beyond discrete tasks such as ensuring that the parking lot

remained orderly at the end of the school day”).

In Freitag, defendant prison officials appealed a jury

verdict in favor of a correctional officer rendered before

Garcetti. Freitag, 468 F.3d at 532, 536. Applying Garcetti

to the § 1983 First Amendment retaliation claim, we held that

Freitag acted pursuant to her professional duties when she

made “internal reports of inmate sexual misconduct and

documentation of the prison’s failure to respond.” Id. at 546.

In contrast, we held that she “acted as a citizen” when she

complained about the same circumstances in a letter to a state

senator and to the state inspector general. Id. at 545. We

found it “a closer question” worthy of remand to the district

court familiar with the trial, whether Freitag acted pursuant to

her official duties when she sent a letter to the director of the

state prison system. Id. at 546. We were “unsure whether

prison guards are expected to air complaints regarding the

conditions in their prisons all the way up to” the director of

the state system. Id.

In more than a half-dozen cases since Freitag, we have

planted additional guideposts for determining the scope of a

plaintiff’s professional duties for the purposes of the First

Amendment. See, e.g., Ellins v. City of Sierra Madre,

710 F.3d 1049 (9th Cir. 2013); Karl v. City of Mountlake

Terrace, 678 F.3d 1062 (9th Cir. 2012); Clairmont v. Sound

28 DAHLIA V. RODRIGUEZ

Mental Health, 632 F.3d 1091 (9th Cir. 2011); Anthoine,

605 F.3d 740; Robinson, 566 F.3d 817; Alaska v. EEOC,

564 F.3d 1062 (9th Cir. 2009) (en banc); Eng, 552 F.3d 1062;

Marable, 511 F.3d 924.

4.

Precisely because of the fact-intensive nature of the

inquiry, no single formulation of factors can encompass the

full set of inquiries relevant to determining the scope of a

plaintiff’s job duties. However, we find that existing case law

and common sense dictate a few guiding principles relevant

to the case before us.13

First, particularly in a highly hierarchical employment

setting such as law enforcement, whether or not the employee

confined his communications to his chain of command is a

13

Other circuits have set forth illustrative lists of factors to consider

when determining whether a given instance of speech falls within the

scope of a plaintiff’s job duties. See, e.g., Handy-Clay v. City of Memphis,

695 F.3d 531, 540–41 (6th Cir. 2012) (identifying as factors: “the impetus

for her speech, the setting of her speech, the speech’s audience, and its

general subject matter”; “whether the statements were made to individuals

up the chain of command”; “whether the content of the speech is nothing

more than the quintessential employee beef: management has acted

incompetently”; “whether the speech was made inside or outside of the

workplace and whether it concerned the subject-matter of the speaker’s

employment” (internal quotation marks omitted)); Decotiis v. Whittemore,

635 F.3d 22, 32 (1st Cir. 2011) (listing as “instructive” but not dispositive

factors: “whether the speech was made up the chain of command; whether

the employee spoke at her place of employment; whether the speech gave

objective observers the impression that the employee represented the

employer when she spoke (lending it ‘official significance’); whether the

employee’s speech derived from special knowledge obtained during the

course of her employment; and whether there is a so-called citizen

analogue to the speech” (citations omitted)).

DAHLIA V. RODRIGUEZ 29

relevant, if not necessarily dispositive, factor in determining

whether he spoke pursuant to his official duties. When a

public employee communicates with individuals or entities

outside of his chain of command, it is unlikely that he is

speaking pursuant to his duties. See Freitag, 468 F.3d at

545–46 (holding that the correctional officer’s

communications with a state senator and the inspector general

were protected speech, but her internal reports were not); see

also Karl, 678 F.3d at 1072; Clairmont, 632 F.3d at 1105–06;

Alaska, 564 F.3d at 1070–71 (holding that the plaintiff’s act

of holding a press conference to protest sex discrimination in

her office was protected speech because, inter alia, her

“official duties didn’t require her to . . . bring the alleged

sexual harassment to the public’s attention”). Thus, we agree

with the Fifth Circuit that, generally, “when a public

employee raises complaints or concerns up the chain of

command at his workplace about his job duties, that speech

is undertaken in the course of performing his job,” Davis v.

McKinney, 518 F.3d 304, 313 (5th Cir. 2008), although “it is

not dispositive that a public employee’s statements are made

internally,” id. at 313 n.3. “If however a public employee

takes his job concerns to persons outside the work place in

addition to raising them up the chain of command at his

workplace, then those external communications are ordinarily

not made as an employee, but as a citizen.” Id. at 313 (citing

Freitag, 468 F.3d 528).14

14

In its amicus brief, the Riverside Sheriffs’ Association and Riverside

Sheriffs’ Association Legal Defense Trust support this chain-of-command

distinction. See Amicus Br. at 2 (arguing that “a police officer’s speech

on a matter of important public concern[] should only fall outside the

scope of First Amendment protection if it is made pursuant to his or her

routine or core duties, within his or her chain of command, and in pursuit

of his or her duty to report misconduct to a superior” (emphases added)).

30 DAHLIA V. RODRIGUEZ

Second, the subject matter of the communication is also

of course highly relevant to the ultimate determination

whether the speech is protected by the First Amendment. See

Handy-Clay, 695 F.3d at 540 (identifying as a relevant factor

the speech’s “general subject matter” (internal quotation

marks omitted)). When an employee prepares a routine

report, pursuant to normal departmental procedure, about a

particular incident or occurrence, the employee’s preparation

of that report is typically within his job duties. See Garcetti,

547 U.S. at 421 (holding that a deputy district attorney’s

preparation of a memorandum regarding the merits of a

particular case was not First Amendment protected speech

because preparation of such memoranda was a routine part of

what he “was employed to do”); Freitag, 468 F.3d at 546

(holding that a correctional officer’s “internal reports of

inmate sexual misconduct” were not constitutionally

protected speech). By contrast, if a public employee raises

within the department broad concerns about corruption or

systemic abuse, it is unlikely that such complaints can

reasonably be classified as being within the job duties of an

average public employee, except when the employee’s

regular job duties involve investigating such conduct, e.g.,

when the employee works for Internal Affairs or another such

watchdog unit.

Third, we conclude that when a public employee speaks

in direct contravention to his supervisor’s orders, that speech

may often fall outside of the speaker’s professional duties.

Indeed, the fact that an employee is threatened or harassed by

his superiors for engaging in a particular type of speech

provides strong evidence that the act of speech was not, as a

“practical” matter, within the employee’s job duties

notwithstanding any suggestions to the contrary in the

employee’s formal job description. Garcetti, 547 U.S. at

DAHLIA V. RODRIGUEZ 31

424–25 (“Formal job descriptions often bear little

resemblance to the duties an employee actually is expected to

perform, and the listing of a given task in an employee’s

written job description is neither necessary nor sufficient to

demonstrate that conducting the task is within the scope of

the employee’s professional duties for First Amendment

purposes.”). We note that our sister circuits have disagreed

with one another on this point. Compare Jackler, 658 F.3d at

241–42 (holding that a police officer was entitled to First

Amendment protection when he filed a truthful affidavit

pursuant to his job duties and later refused the police chief’s

pressure to substitute a false affidavit, concluding that the

First Amendment protected his refusal to comply with the

illegal orders), with Bowie v. Maddox, 653 F.3d 45, 48 (D.C.

Cir.) (concluding that Jackler was wrongly decided because,

despite the police chief’s illegal order, “the illegality of a

government employer’s order does not necessarily mean the

employee has a cause of action under the First Amendment

when he contravenes that order”), denying reh’g to 642 F.3d

1122 (D.C. Cir. 2011). As in Jackler, we think that it is

relevant to the resolution of Dahlia’s case that Dahlia

disclosed misconduct to LASD in contravention of the

numerous threats and admonitions from his superiors not to

reveal the misconduct to anyone. Even assuming arguendo

that Dahlia might normally be required to disclose

misconduct pursuant to his job duties, here he defied, rather

than followed, his supervisors’ orders. As part of a

“practical” inquiry, a trier of fact must consider what Dahlia

was actually told to do. See Garcetti, 547 U.S. at 424–25; see

also Robinson, 566 F.3d at 820–21, 823–24 (finding that we

lacked jurisdiction where the district court found that there

were genuine factual issues “regarding whether the scope of

Robinson’s duties included reporting police misconduct”

when Robinson, a police officer, filed multiple misconduct

32 DAHLIA V. RODRIGUEZ

reports and testified to the same effect despite his superiors’

suggestions that he not do so).15

These principles serve as a necessary guide to analyzing

the fact-intensive inquiry mandated by Garcetti.

5.

We next apply these principles to Dahlia. Although the

district court focused exclusively on Dahlia’s disclosure to

LASD, Dahlia alleged several independent acts that could

potentially be subject to First Amendment protection.

Because the district court granted a Rule 12(b)(6) motion to

dismiss, our task is not to resolve any factual dispute, but

merely to determine whether Dahlia’s allegations support a

reasonable inference that he acted outside of his professional

duties in each instance.16 At the motion to dismiss stage, we

take Dahlia’s well-pleaded factual allegations as true. On

remand, the parties will have an opportunity to conduct

discovery as to Dahlia’s professional duties. Nonetheless, it

is within our wheelhouse to reject, as implausible, allegations

that are too speculative to warrant further factual

development. Twombly, 550 U.S. at 570.17

15

We decline to adopt as binding law a passing reference made by some

of the Garcetti dissenters. O’Scannlain Concurrence at 62 (quoting

Garcetti, 547 U.S. at 433 (Souter, J., dissenting)).

16

As discussed supra, we find it evident that Dahlia’s speech addressed,

in each instance, a matter of public concern.

17

Were this case at the summary judgment stage and the undisputed

facts enabled us to conclude whether Dahlia spoke pursuant to his job

duties, then we could perform the “screening” role that Judge O’Scannlain

DAHLIA V. RODRIGUEZ 33

a.

Dahlia initially disclosed the misconduct that he had

observed to defendant Lieutenant Murphy, the officer in

charge of the Porto’s robbery investigation, who told him to

“stop his sniveling.” Dahlia alleged that he met with Murphy

two additional times regarding the misconduct, pleading that

“the beatings have to stop.” Even construing the facts and

drawing all inferences in Dahlia’s favor, the only reasonable

conclusion is that Dahlia acted pursuant to his job duties

when he—as a detective investigating the Porto’s robbery and

prior to receiving any threats or orders to the

contrary—reported up the chain of command to the

supervising lieutenant overseeing the investigation about

abuse related to that same investigation.18 That Murphy

appears to have ignored Dahlia’s initial report does not

convert into protected speech Dahlia’s later reports to the

same supervisor. See Freitag, 468 F.3d at 545–46.19

exhorts us to play. O’Scannlain Concurrence at 59. At the pleading stage,

our role is more limited.

18

By reporting to Murphy, a lieutenant, and not the sergeant leading the

investigation, Penaranda, Dahlia likely skipped one level in the chain of

command. This ambiguity is not sufficient to cast doubt on our

conclusion here, where Dahlia specifically alleged that Murphy “oversaw

the entire Porto’s robbery investigation,” and Penaranda—Dahlia’s direct

supervisor—was the subject of Dahlia’s report.

19

Judge Pregerson argues lucidly why the First Amendment should

protect a police whistleblower who defies his superiors’ attempts to

silence him. See generally Pregerson Concurrence. As we conclude,

supra in III.A.4., when a public employee speaks in direct contravention

to his supervisor’s orders, that speech may often fall outside of the

speaker’s professional duties. Here, however, Dahlia reported the

misconduct to Murphy prior to being subjected to his superiors’ threats

34 DAHLIA V. RODRIGUEZ

b.

Dahlia subsequently met with BPD’s Internal Affairs

officers three times. He alleged that he was harassed and

threatened not to report any misconduct in anticipation of and

following each meeting. Conspicuously, Dahlia does not

allege that he actually disclosed any misconduct during his

interviews with IA.

In meeting with the IA officers, Dahlia does not allege

that he acted in contravention of his supervisors’ orders.

Dahlia does not allege that anyone ever instructed him not to

meet with IA, but only that supervisors threatened him not to

say anything when interviewed. Because Dahlia appears to

have done precisely what his superiors wanted him to

do—that is, meet with IA but stay mum—we cannot say that

Dahlia acted in contravention of their orders.

Nonetheless, Dahlia may very well have acted outside his

chain of command when he met with IA. Although Dahlia

did not explicitly allege that he acted outside his professional

duties when he met with IA, this is not dispositive because we

must draw all reasonable inferences in his favor. It is

possible that Dahlia’s professional duties required him to

meet with IA at IA’s insistence, but it is also plausible that

Dahlia’s act of meeting with IA was outside his job duties for

the purpose of the First Amendment. At this stage of the

proceedings, where, as here, there is no allegation regarding

a BPD officer’s duties with respect to meeting and

cooperating with IA, we must resolve the ambiguity in

Dahlia’s favor. Drawing this inference in Dahlia’s favor, we

and intimidation and therefore could not have been acting in contravention

of them.

DAHLIA V. RODRIGUEZ 35

conclude that Dahlia has adequately alleged that his meetings

with IA are protected by the First Amendment.

c.

After word had spread that the FBI might be investigating

BPD, Rodriguez allegedly called Dahlia into his office and

threatened to “put a case on” him and put him “in jail.”

Dahlia alleged that he reported this incident to the Burbank

Police Officers’ Association president, who in turn reported

it to the city manager.20 As with his other acts, Dahlia does

not specifically allege that he acted outside his job duties

when he reported the incident, nor that the retaliation he faced

was directly caused by this act of reporting. Nonetheless,

guided by the principles articulated above and drawing all

reasonable inferences in Dahlia’s favor, we conclude that

Dahlia’s report to his police union constituted protected

speech. At this stage in the proceedings, it is reasonable to

infer that Dahlia did not have a duty to report threats to his

union, which constitutes a separate entity from BPD.

d.

Ultimately, Dahlia disclosed the defendants’ misconduct,

threats, and harassment to LASD when interviewed about the

Porto’s robbery investigation.21 In doing so, Dahlia clearly

20

This is not merely an “employee beef: management has acted

incompetently,” Handy-Clay, 695 F.3d at 540; rather, the alleged threat

and attempt to stifle an investigation into police misconduct is clearly a

matter of great public concern, see Thomas, 379 F.3d at 809.

21

In his briefs on appeal, Dahlia also referenced disclosing information

to the FBI, but there are no allegations in the complaint that Dahlia ever

spoke with, let alone disclosed anything to, federal agents.

36 DAHLIA V. RODRIGUEZ

spoke outside the chain of command and, indeed, to an

outside agency altogether. Whether Dahlia ultimately acted

pursuant to his job duties when he disclosed misconduct to

LASD may well turn on whether discovery reveals that

Dahlia’s supervisors instructed him to meet with and disclose

information to LASD or in fact Dahlia did so of his own

volition. Construing the complaint in Dahlia’s favor, his

disclosure to LASD is protected by the First Amendment.

B. Adverse Employment Action

The district court dismissed Dahlia’s suit on the

alternative ground that placement on administrative leave is

not an adverse employment action. We disagree. We

conclude that, under some circumstances, placement on

administrative leave can constitute an adverse employment

action.22 Moreover, we conclude that Dahlia sufficiently

22

The district court also found that Dahlia failed to allege that any of the

individual defendants, other than Chief Stehr, caused him to be placed on

administrative leave or to suffer any other adverse employment

consequence. To the extent that the particular threats and harassment by

Penaranda and Rodriguez can constitute adverse employment actions, we

disagree. Dahlia has alleged as clearly as possible, pointing to specific

instances, that both defendants threatened and harassed him in an attempt

to silence him. With respect to Dahlia’s placement on administrative

leave, on remand Dahlia may seek leave to amend his complaint to clarify

his allegations. We note that “‘personal participation is not the only

predicate for section 1983 liability. Anyone who “causes” any citizen to

be subjected to a constitutional deprivation is also liable.’” Gilbrook v.

City of Westminster, 177 F.3d 839, 854 (9th Cir. 1999) (quoting Johnson

v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). The “‘requisite causal

connection can be established not only by some kind of direct personal

participation in the deprivation, but also by setting in motion a series of

acts by others which the actor knows or reasonably should know would

cause others to inflict the constitutional injury.’” Id. (quoting Johnson,

588 F.2d at 743–44).

DAHLIA V. RODRIGUEZ 37

alleged additional acts that could also constitute adverse

employment actions.23

“To constitute an adverse employment action, a

government act of retaliation need not be severe and it need

not be of a certain kind. Nor does it matter whether an act of

retaliation is in the form of the removal of a benefit or the

imposition of a burden.” Coszalter v. City of Salem, 320 F.3d

968, 975 (9th Cir. 2003). In Coszalter, we said that, in First

Amendment retaliation cases, “[t]he goal is to prevent, or

redress, actions by a government employer that ‘chill the

exercise of protected’ First Amendment rights.” Id. at

974–75 (quoting Rutan v. Republican Party of Ill., 497 U.S.

62, 73 (1990)). Therefore, we held that the proper inquiry is

whether the action is “reasonably likely to deter employees

from engaging in protected activity.” Id. at 976 (internal

quotation marks omitted); see also id. (holding that “if the

plaintiffs in this case can establish that the actions taken by

the defendants were ‘reasonably likely to deter [them] from

engaging in protected activity [under the First Amendment],’

they will have established a valid claim under § 1983”

(alterations in original)).

We have not previously decided whether placement on

administrative leave constitutes an adverse employment

action. See Lakeside–Scott v. Multnomah County, 556 F.3d

797, 803 n.7 (9th Cir. 2009) (noting that “being placed on

23

In his opposition to defendants’ motions to dismiss, Dahlia requested

leave to amend his complaint. In light of its ruling that Huppert

controlled, the district court never addressed Dahlia’s requests for leave

to amend, apparently because any amendment would have been futile. On

remand, in the event that Dahlia renews his request to amend his

complaint, the district court should grant him leave to clarify his

allegations.

38 DAHLIA V. RODRIGUEZ

administrative leave might qualify as an adverse employment

action” but declining to reach the issue because it had not

been properly preserved for appeal). Dahlia’s

assertions—that administrative leave prevented him from

taking the sergeant’s exam, required him to forfeit on-call and

holiday pay, and prevented him from furthering his

investigative experience—if proved, would constitute an

adverse employment action. The inability to take a

promotional exam, loss of pay and opportunities for

investigative experience, as well as the general stigma

resulting from placement on administrative leave appear

“reasonably likely to deter employees from engaging in

protected activity.” Coszalter, 320 F.3d at 976.

Dahlia made other allegations of conduct that may also

constitute an adverse employment action. “Various kinds of

employment actions may have an impermissible chilling

effect. Depending on the circumstances, even minor acts of

retaliation can infringe on an employee’s First Amendment

rights.” Id. at 975. Dahlia alleged that Rodriguez threatened

to “put a case” on him and to put him “in jail.” These threats,

if true, were made with the specific purpose of chilling

Dahlia’s speech, and they appear “reasonably likely to deter”

employees from speaking about misconduct observed within

the BPD. Indeed, if it is true that Dahlia did not disclose

what he knew when interviewed by IA, the chilling effect was

in fact achieved, albeit for a limited time. The same might be

said of Rodriguez’s alleged stunt in the park—calling Dahlia

to the scene of a purported crime only to confront him with

another officer and threaten him to stay silent. With further

factual development, the same might also be true of the

ongoing harassment and threats that Dahlia suffered from

Rodriguez, Penaranda and other officers.

DAHLIA V. RODRIGUEZ 39

We note that in the Title VII context—from which the

Coszalter standard is derived—courts have found that far less

serious actions were sufficient to deter a reasonable employee

from engaging in protected speech. See Burlington N. &

Santa Fe Ry. Co. v. White, 548 U.S. 53, 70–71 (2006)

(concluding that a change in work assignment within the

same job description would have deterred a reasonable

employee from making a charge of discrimination); Brooks

v. City of San Mateo, 229 F.3d 917, 928–29 (9th Cir. 2000)

(noting that “termination, dissemination of a negative

employment reference, issuance of an undeserved negative

performance review and refusal to consider for promotion”

constitute adverse employment actions, whereas “declining

to hold a job open for an employee and badmouthing an

employee outside the job reference context” do not). Threats

to put someone in jail or that cause an employee to fear for

his own safety easily exceed the “reasonably likely to deter”

standard. Construing the allegations in the light most

favorable to Dahlia, we conclude that he has sufficiently

stated that he suffered adverse employment actions.24

24

This step of the Eng test has a sub-element that is not at issue in this

appeal: whether the plaintiff’s speech was a substantial or motivating

factor in the adverse employment action. That issue was not raised in the

briefs, and we do not reach it. See Butler v. Curry, 528 F.3d 624, 642 (9th

Cir. 2008). We note only that although much of the alleged harassment

preceded Dahlia’s ultimate disclosure to LASD, such chronology does not

necessarily weigh against a finding that the harassment was an adverse

employment action meant to discourage Dahlia from reporting the

misconduct to others. In other words, insofar as the harassment was

intended to chill Dahlia’s protected speech, it may qualify as an adverse

employment action. See, e.g., Allen v. Scribner, 812 F.2d 426, 434 n.17

(9th Cir.) (noting in a First Amendment § 1983 retaliation case that a valid

claim can be stated “[w]here comments of a government official can

reasonably be interpreted as intimating that some form of punishment or

adverse . . . action will follow the failure to accede to the official’s request

40 DAHLIA V. RODRIGUEZ

IV. CONCLUSION

We overrule Huppert v. City of Pittsburg and hold that

Dahlia has sufficiently stated a claim pursuant to 42 U.S.C.

§ 1983, namely that he was retaliated against for his protected

speech. We remand to the district court for further

proceedings consistent with this opinion.

REVERSED AND REMANDED.

PREGERSON, Circuit Judge, specially 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 Penaranda 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

[that the employee curtail his first amendment rights]” (second alteration

omitted in original) (internal quotation marks omitted)), amended,

828 F.2d 1445 (9th Cir. 1987).

1

Because Dahlia’s case was dismissed on a motion to dismiss, we treat

Dahlia’s allegations in his complaint as true in reviewing his claim. See

Two Rivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999).

DAHLIA V. RODRIGUEZ 41

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

Penaranda, 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

Penaranda 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 and I will put a case on you, and put

you in jail.”

Detective Dahlia reported Lieutenant Rodriguez’s threats

to the Burbank Police Officers’ Association. Dahlia

disclosed all of the officers’ unlawful misconduct to the Los

Angeles County Sheriff’s Department. Shortly thereafter,

Dahlia was placed on administrative leave.

Dahlia filed a complaint under 42 U.S.C. § 1983 for First

Amendment retaliation. I hold to the view that all of Dahlia’s

speech that reported unlawful acts by his fellow officers is

protected under the First Amendment from retaliation by his

superior officers at the Burbank Police Department.

I. Garcetti’s Limitation on Speech Made Pursuant to

Official Duties Does Not Apply to Dahlia’s Reports of

Police Abuse.

I agree with the majority opinion that Detective Dahlia’s

speech that reported police abuse is without a doubt a matter

of public concern. Maj. Op. at 14. I respectfully disagree

42 DAHLIA V. RODRIGUEZ

with the majority on how Garcetti v. Ceballos, 547 U.S. 410

(2006) applies to this case. The majority opinion tells us that

under Garcetti, “[e]ven construing the facts and drawing all

inferences in Dahlia’s favor, the only reasonable conclusion

is that Dahlia acted pursuant to his job duties when he—as a

detective investigating the Porto’s robbery and prior to

receiving any threats or orders to the contrary—reported up

the chain of command to the supervising lieutenant

overseeing the investigation about abuse related to that same

investigation.” Maj. Op. at 33. Thus, Dahlia’s speech that

reported up the chain of command is not protected by the

First Amendment against public employer retaliation. But

according to the majority opinion, Dahlia’s speech that

reported police abuse outside the chain of command to

Internal Affairs, the Burbank Police Officers’ Association,

and the Los Angeles Sheriff’s Department, was not within his

official duties and is protected under the First Amendment

against public employer retaliation. Maj. Op. at 34–36. In

my view, the majority opinion misapplies Garcetti to

Dahlia’s speech reported up the chain of command.

In Garcetti, the public employee, Richard Ceballos, was

a deputy district attorney who was expected “to advise his

supervisor about how best to proceed with a pending case.”

Garcetti, 547 U.S. at 421. To fulfill that duty, Ceballos wrote

a memo that recommended that a pending criminal case be

dismissed. Id. at 414, 421. In the memo, Ceballos stated his

opinion that an affidavit used to obtain a warrant contained

misrepresentations. Id. at 414. Ceballos’s supervisors

reviewed his memo, discussed it, disagreed with its

recommendation, and went forward to prosecute the case. Id.

at 414–15, 423. The Supreme Court held that “the memo was

written pursuant to Ceballos’s official duties.” Id. at 421–24.

DAHLIA V. RODRIGUEZ 43

Thus, Ceballos could not base a First Amendment retaliation

claim on the memo. Id.

Garcetti’s restriction on First Amendment protection for

public employee’s speech pursuant to their official duties

does not apply to Dahlia for three reasons: (1) Dahlia’s

superior officers restricted Dahlia’s speech so that they could

cover up unlawful conduct; (2) Dahlia’s superiors forbade

Dahlia from reporting the police abuse; and (3) Dahlia’s

superiors sought only to silence Dahlia’s speech.

First, Garcetti did not give public employers an unlimited

right to restrict the speech of their public employees.

“Employees in some cases may receive First Amendment

protection for expressions made at work.” Garcetti, 547 U.S.

at 420. Garcetti held that when public employees speak on

matters of public concern, they “must face only those speech

restrictions that are necessary for their [public] employers to

operate efficiently and effectively.” Id. at 419. To that end,

Garcetti explained that speech made pursuant to official

duties is speech that public employees express when carrying

out routine functions. Id. at 421–23. The purpose of

Garcetti’s restriction is to ensure that courts do not supervise

a government employer’s day-to-day operations. Id. at

420–23.

In contrast, Dahlia’s superior officers restricted Dahlia’s

speech to cover up blatantly unlawful conduct. Such conduct

has no connection to the government’s legitimate efforts to

run efficient and effective routine operations at issue in

Garcetti. Thus, Dahlia’s superiors’ unlawful efforts are not

the type of government operations that Garcetti seeks to

insulate from judicial review. Id. at 421–22; Tenn. Secondary

Sch. Athletic Ass’n v. Brentwood Acad., 551 U.S. 291, 300

44 DAHLIA V. RODRIGUEZ

(2007) (citing Garcetti and holding that an athletic

association, like a public employer, can “impose only those

conditions on . . . speech [concerning matters of public

concern] that are necessary to managing an efficient and

effective state-sponsored high school athletic league”).

Second, Garcetti instructs us that as a “practical” matter,

an official duty is a task that the “employee actually is

expected to perform.” Garcetti, 547 U.S. at 424–25. It

makes no sense to permit the Burbank Police Department to:

(1) forbid Dahlia from reporting police abuse; and then (2)

claim that the forbidden reporting was part of his official

duties, and thus, not subject to First Amendment protection

against retaliation.

Third, Garcetti emphasized that public employers must be

able to evaluate official communications to ensure that they

reflect “substantive consistency and clarity,” and are

“accurate, demonstrate sound judgment, and promote the

[public] employer’s mission.” Id. at 422–23. None of this

happened here. Dahlia’s superior officers made no effort to

evaluate Dahlia’s speech for consistency, clarity, or

conformity with a legitimate employer mission. Nor did

Dahlia’s superiors raise any concern with the veracity or

accuracy of Dahlia’s speech. Instead, Dahlia’s superiors

sought only to silence his speech.

For these reasons, Garcetti’s bar on First Amendment

protection for speech made pursuant to official duties does

not apply to Dahlia’s reports of police abuse.2 Therefore

2

Contrary to the majority opinion’s suggestion, my analysis does not

hinge on whether Detective Dahlia defied his superior officers’ orders, it

is based solely on the unlawful conduct of his superior officers. Maj. Op.

DAHLIA V. RODRIGUEZ 45

Dahlia’s reports, a matter of public concern, are protected by

the First Amendment from public employer retaliation.

Garcetti, 547 U.S. at 420, 424; Connick v. Myers, 461 U.S.

138, 149 (1983) (finding that an assistant district attorney’s

inquiry to coworkers made at work, that “touch[ed] upon a

matter of public concern,” constituted protected speech).

II. The Majority’s Chain of Command Guidelines Lead

to a Vexing Result in the Context of Police Abuse.

The practical reality is that quite a few police officers are

reluctant to report acts of police abuse committed by their

fellow officers. The “‘officer code of silence’” describes the

understanding that “‘an officer does not provide adverse

information against a fellow officer.’” Cunningham v. Gates,

229 F.3d 1271, 1283 n.19 (9th Cir. 2000) (quoting Report of

the Independent Commission on the Los Angeles Police

Department at 168 (1991)). The public’s trust is diminished

when a law enforcement officer abides by the code of silence

to cover up misconduct engaged in by fellow officers.3 To

at 33 n.19. Accordingly, Garcetti’s restriction should not apply to

Detective Dahlia’s reports of police abuse made to Lieutenant Murphy.

From the outset, (1) Lieutenant Murphy restricted Dahlia’s speech so that

he could cover up unlawful conduct; (2) Lieutenant Murphy forbade

Dahlia from reporting the police abuse; and (3) Lieutenant Murphy sought

only to silence Dahlia’s speech.

3

See, e.g., Brandon v. Holt, 469 U.S. 464, 467 (1985) (noting district

court’s finding that “[d]ue to a code of silence induced by peer pressure

. . . , few—if any—formal complaints were ever filed by police personnel”

(internal quotations marks omitted)); Blair v. City of Pomona, 223 F.3d

1074, 1080 (9th Cir. Cal. 2000) (holding “evidence, if believed by the

jury, would be sufficient to establish that the [Police] Department had the

custom of chastising whistleblowers” and that officials in the Police

Department “were aware of the police code of silence”); Matt Pearce, Jury

46 DAHLIA V. RODRIGUEZ

strengthen the public’s confidence in the integrity of its law

enforcement officers, it is essential that an officer be

encouraged or required to report misconduct committed by

fellow officers.

The majority’s chain of command guidelines undermine

policies that require law enforcement officers to report police

abuse up the chain of command. Under the majority

opinion’s approach, a police officer who complies with his

duty and reports unlawful acts to his superiors, and as a

consequence is fired for his speech, has no First Amendment

protection. In contrast, a police officer who reports unlawful

acts to the news media, and as a consequence is fired for his

speech, is shielded by the First Amendment.4 Police officers

are trapped in a Catch 22: violate their duty to report up the

chain of command or expose themselves to retaliation. A

police officer who witnesses police abuse may turn a blind

eye to avoid either consequence. This outcome “chills the

Rules Chicago Police ‘Code of Silence’ Protected Felon Cop, LOS

ANGELES TIMES, Nov. 14, 2012 (“A pervasive culture of silence in the

Chicago Police Department led officers to try to cover up the brutal 2007

bar beating of a 115-pound bartender by a 225-pound off-duty officer, a

federal jury has decided.”); John Hagedorn et al., Crime, Corruption and

Cover-ups in the Chicago Police Department, 2013 UNIV. OF ILL. AT CHI.

DEP’T OF POLITICAL SCIENCE, ANTI-CORRUPTION REPORT NO. 7, at 1

(“The ‘blue code of silence,’ while difficult to prove, is an integral part of

the department’s culture and it exacerbates the corruption problems.”).

4

As we have recognized, “[i]n the context of ‘good faith

whistleblowing’ involving reports within a government department rather

than to the public, ‘the breadth of one’s audience is irrelevant’ because

‘[i]t would be absurd to extend First Amendment protection only to those

whistleblowers who immediately appear on the local news.’” Robinson v.

York, 566 F.3d 817, 824 (9th Cir. 2009) (quoting Hufford v. McEnaney,

249 F.3d 1142, 1150 (9th Cir. 2001)).

DAHLIA V. RODRIGUEZ 47

speech of potential whistleblowers in a culture that is already

protective of its own.” Dahlia v. Rodriguez, 689 F.3d 1094,

1104 (9th Cir. 2012). Garcetti does not require this untenable

result.

III. Conclusion.

I agree with the majority opinion that Detective Dahlia

stated a claim under 42 U.S.C. § 1983 for First Amendment

retaliation.5 But for the foregoing reasons, I believe that

Dahlia’s claim may be based on all of his speech that reported

police abuse, whether reported up the chain of command or

outside the chain of command.

O’SCANNLAIN, Circuit Judge, with whom KOZINSKI,

Chief Judge, joins, concurring only in the judgment:

Seven years ago, the Supreme Court counseled us that we

had “misconceive[d] the theoretical underpinnings” of First

Amendment retaliation law. Garcetti v. Ceballos, 547 U.S.

410, 423 (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

5

I agree with the majority’s analysis and conclusion that Dahlia

sufficiently stated an adverse employment action. The remaining

requirements of Eng v. Cooley are not at issue in this appeal. See 552 F.3d

1062, 1070 (9th Cir. 2009).

48 DAHLIA V. RODRIGUEZ

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. We determined that the duty of California law

enforcement officers to report criminal activity meant that the

officer’s reports of police misconduct internally, as well as to

the FBI, did not qualify as protected “citizen-speech.”

Although I might not preserve every line of that opinion, at its

core, Huppert got Garcetti right. Two key insights emerge

from that case that help illustrate how the majority in this

case has gone off track.

First, Huppert correctly appreciated that the Garcetti-

inquiry is no trifle. Id. at 702–03. Like Connick v. Myers,

461 U.S. 138 (1983), which asks whether a public employee’s

speech is on a matter of public concern, Garcetti delineates

the First Amendment’s very scope. Put differently, the

speech at issue “must not be expression on-the-job and within

the scope of the employee’s duties; if it is, there is no First

Amendment protection for the speech.” Erwin Chemerinsky,

Constitutional Law: Principles and Policies 1151 (4th ed.

2011). Instead, a would-be plaintiff’s remedy usually lies in

DAHLIA V. RODRIGUEZ 49

“the powerful network of legislative enactments” that protect

whistleblowers. Garcetti, 574 F.3d at 425.1

Second, Huppert understood that with the “pursuant-to-

official-duties” test, the Garcetti Court was charting a clear

course that distinguished between citizen-speech and

employee-speech. See 574 F.3d at 702.2 There, the Supreme

Court explained that

[the plaintiff] did not act as a citizen when he

went about conducting his daily professional

activities, such as supervising attorneys,

investigating charges, and preparing filings.

In the same way he did not speak as a citizen

1

The lack of a constitutional action may sometimes be for the best, as

this “complicated employment law issue . . . is much better suited for a

legislative solution.” John Q. Mulligan, Note, Huppert, Reily, and the

Increasing Futility of Relying on the First Amendment to Protect

Employee Speech, 19 Wm. & Mary. Bill Rts. J. 449, 456 (2010). Many

questions arise, such as “what types of complaints should be protected,

whether internal or external whistleblowing should be protected, and what

types of employer responses should be punished.” Id. at 468.

2

The dissenters in Garcetti, as well the academic literature since,

recognize the bright-line nature of the inquiry. See, e.g., Garcetti,

547 U.S. at 432 (Souter, J., dissenting) (majority “categorically separat[es]

the citizen’s interest from the employee’s interest”); id. at 427 (Stevens,

J., dissenting) (similar); id. at 446 (Breyer, J., dissenting) (majority

approach described as “absolute”); Chemerinsky, supra, at 1147

(describing Garcetti as “a categorical exception from constitutional

protection for speech which is on the job in the scope of the employee’s

duties”); Caroline A. Flynn, Note, 111 Mich. L. Rev. 759, 761 (2013)

(Garcetti “replaced the balancing framework with a bright-line rule”);

Monique Alexandra Bair, Garcetti v. Ceballos: Swapping The First

Amendment Rights of Public Employees for Greater Government Control,

37 Rutgers L. Rec. 44, 52–55 (2010) (same).

50 DAHLIA V. RODRIGUEZ

by writing a memo that addressed the proper

disposition of a pending criminal case. When

he went to work and performed the tasks he

was paid to perform, [he] acted as a

government employee.

Garcetti, 547 U.S. at 422. The consequence of the

citizen/employee dichotomy is that protection in the

workplace is to be the exception—not at all the rule. See,

e.g., id. at 420 (“Employees in some cases may receive First

Amendment protection for expressions made at work”)

(emphasis added); Morales v. Jones, 494 F.3d 590, 598 (7th

Cir. 2007) (noting that “the purpose of Garcetti was to allow

government employers greater influence over speech that

owes it[s] existence to a public employee’s professional

responsibilities”).

With its decision to discard Huppert, and with its newly-

minted “guiding principles” for identifying protected speech,

the majority opinion reopens doors that Garcetti slammed

shut. See Maj. Op. at 21, 28–32.

II

A

I cannot agree that “the Huppert majority failed to heed

Garcetti’s mandate” about a practical inquiry by taking stock

of California courts’ “description of a California police

officer’s professional duties.” Maj. Op. at 21. Here is the

entirety of what the Supreme Court said on this issue:

Two final points warrant mentioning. First, as

indicated above, the parties in this case do not

DAHLIA V. RODRIGUEZ 51

dispute that Ceballos wrote his disposition

memo pursuant to his employment duties. We

thus have no occasion to articulate a

comprehensive framework for defining the

scope of an employee’s duties in cases where

there is room for serious debate. We reject,

however, the suggestion that employers can

restrict employees’ rights by creating

excessively broad job descriptions. See post,

at 1965, n.2 (SOUTER, J., dissenting). The

proper inquiry is a practical one. Formal job

descriptions often bear little resemblance to

the duties an employee actually is expected to

perform, and the listing of a given task in an

employee’s written job description is neither

necessary nor sufficient to demonstrate that

conducting the task is within the scope of the

employee’s professional duties for First

Amendment purposes.3

Garcetti, 547 U.S. at 424. This passage appears near the end

of the opinion, after the Court announced its conclusion of

law and after it applied that holding to the plaintiff’s facts.

Id. at 420–22. It is written as a rejoinder to the principal

dissent’s worry that “one response to the Court’s holding will

be moves by government employers to expand stated job

descriptions to include more official duties and so exclude

even some currently protectable speech from First

Amendment purview.” Garcetti, 547 U.S. at 431 n.2 (Souter,

J., dissenting).

3

The second point the Court made is that the Garcetti analysis should

not uncritically be applied when academic freedom is involved. See

547 U.S. at 425.

52 DAHLIA V. RODRIGUEZ

Read in context, this practical-inquiry passage simply

directs us not to engage in a stilted or excessively formulaic

inquiry. On the one hand, the Court is explaining that the sort

of gamesmanship Justice Souter feared is not to be tolerated.

On the other hand, the Garcetti Court is explaining (as

cogently expressed by the Sixth Circuit) that “[s]peech by a

public employee made pursuant to ad hoc or de facto duties

not appearing in any written job description is nevertheless

not protected if it owes its existence to the speaker’s

professional responsibilities.” Fox v. Traverse City Area

Pub. Sch. Bd. of Educ., 605 F.3d 345, 348 (6th Cir. 2010)

(alteration and internal quotation marks omitted). The

prototypical examples of protected speech are “writing a

letter to a local newspaper, as the teacher-plaintiff did in

Pickering” and “discussing politics with a co-worker.” Foley

v. Randolph, 598 F.3d 1, 6 (1st Cir. 2010) (discussing

Garcetti, 547 U.S. at 423). In Garcetti, the plaintiff did not

engage in these types of actions; instead he “spoke as a

prosecutor.” 547 U.S. at 421. That speech was unprotected

because “[w]hen a public employee speaks pursuant to

employment responsibilities” there generally is not a

“relevant analogue to speech by citizens who are not

government employees.” Id. at 424.

In the case before us, we confront what it means to speak

as a police officer. I would not interpret the Supreme Court’s

caution against formalism—the “practical-inquiry” passage

from Garcetti—as an obstacle to our evaluating a public-

employee plaintiff’s case against the backdrop of legal and

professional norms. See, e.g., Tamayo v. Blagojevich,

526 F.3d 1074 (7th Cir. 2008) (taking notice, in reviewing a

motion to dismiss, of the oversight responsibilities of a state

legislative committee and of the duties of the administrator of

the gaming board); Foley, 598 F.3d at 4 (considering

DAHLIA V. RODRIGUEZ 53

Massachusetts General Laws ch. 48 § 42, which spells out a

fire department chief’s “powers and duties,” as well as the

specific contract that governed the chief’s employment).

B

1

California courts tell us that, “[u]nlike civilians,” that

state’s police officers are “expected to prevent others from

committing crimes, to assist in the investigation of crime, and

to use their law enforcement authority to maintain the trust of

the public in its criminal justice system.” People v. Owens,

69 Cal. Rptr. 2d 428, 430–31 (Ct. App. 1997) (upholding a

District Attorney’s decision to single out an off-duty police

officer for prosecution for engaging in a pyramid scheme

because, in contrast to his civilian confederates, he had

“failed to discharge” the “special obligations” of his office).

This principle was first articulated in the canonical case

of Christal v. Police Commission of City and County of San

Francisco, 92 P.2d 416 (Cal. Ct. App. 1939). See also Titus

v. Los Angeles Cnty. Civil Serv. Comm’n, 181 Cal. Rptr. 699,

703 (Ct. App. 1982) (stating that Christal “enunciated the

role of a law enforcement officer.”). “Among the duties of

[California] police officers” is the responsibility to disclose

“all information known to them which may lead to the

apprehension and punishment of those who have

transgressed” their state’s laws. Christal, 92 P.2d.at 419.

The case further explained that “[w]hen police officers

acquire knowledge of facts which will tend to incriminate any

person, it is their duty to disclose such facts to their superiors

and to testify freely concerning such facts when called upon

to do so before any duly constituted court or grand jury.” Id.

54 DAHLIA V. RODRIGUEZ

Christal went so far as to say that “[i]t is for the performance

of these duties that police officers are commissioned and paid

by the community.” Id. (emphasis added); compare with

Garcetti, 547 U.S. at 422 (explaining that when the plaintiff

“performed the tasks he was paid to perform” he had “acted

as a government employee” (emphasis added)). Dahlia has

not marshaled any authority undermining Huppert’s

conclusion that police officers still have these obligations

when speaking to external law enforcement agencies, such as

the county sheriff or FBI. See 574 F.3d at 707.4

My colleagues deride these duties as either relics of a

bygone era or judicial musing too naive to credit. See Maj.

Op. at 20 n.9 (the “passage from Christal relied upon by the

4

California law, in fact, suggests just the opposite. In one case, an

Alhambra Police Department Officer who had sexually harassed a

motorist went to his union representative for help in dealing with the Los

Angeles Sheriff’s Department investigation into his misconduct.

Alhambra Police Officers Ass’n v. City of Alhambra Police Dep’t, 7 Cal.

Rptr. 3d 432, 434–35 (Ct. App. 2003). In that meeting, the officer

disclosed incriminating details; the union representative failed to pass

along evidence to his superiors and helped the officer retrieve a document

with the driver’s telephone number on it—a violation of several

department policies. Id. The California Court of Appeal found that the

union representative had an obligation to assist in bringing the officer’s

misconduct to light, based on Christal and its progeny. Obviously this

broad duty is part of the special responsibility of police and not something

characteristic to most other forms of public employment. See, e.g., Davis

v. McKinney, 518 F.3d 304, 316 (5th Cir. 2008) (explaining it was not

within a public university’s “auditor’s job function to communicate with

outside police authorities [such as the FBI] or other agencies [such as the

Equal Employment Opportunity Commission] in an investigation”);

Freitag v. Ayers, 468 F.3d 528 (9th Cir. 2006) (deciding that it was not

part of a correctional officer’s “official tasks to complain to [a] Senator or

the [Inspector General] about the state’s failure to perform its duties

properly”).

DAHLIA V. RODRIGUEZ 55

Huppert majority reads like a civics textbook”). Yet the

California Government Code in force today states that public

safety officers may be ordered “to cooperate with other

agencies involved in criminal investigations [and] [i]f an

officer fails to comply with such an order, the agency may

officially charge him or her with insubordination.” Cal.

Gov’t Code § 3304. And, numerous California cases have

cited the Christal principle over the decades to express “the

all-important concept of the peculiar and delicate position

police officers hold in society.” Frazee v. Civil Serv. Bd. of

Oakland, 170 Cal. App. 2d 333, 335 (Ct. App. 1959). As the

City of Burbank has argued to us, in a wide variety of settings

the unique charge of those tasked with enforcing the criminal

laws has overridden other important rights. See, e.g., Titus,

181 Cal. Rptr. at 363–65 (demanding that officers forsake

attorney-client privilege in order “to cooperate in a criminal

investigation”); Riverside Cnty. Sheriff’s Dept. v. Zigman,

87 Cal. Rptr. 3d 358, 361–62 (Ct. App. 2008) (describing “a

law enforcement officer’s duty to report criminal activity to

his or her employer,” and explaining that the “statutory

privilege at issue in this case, must yield when [its] exercise

is inconsistent with the performance of the officer’s duties”).

The majority also rejects this “court-created job

description applicable to every member of [the] profession”

by invoking the specter of employer gamesmanship. Maj.

Op. at 21. Given its seventy-plus year lineage, the California

police officer description of duty could not possibly be a

reaction to the Garcetti opinion. Cf. Garcetti, 547 U.S. at 431

n.2 (Souter, J., dissenting) (“I am pessimistic enough to

expect that one response to the Court’s holding will be moves

by government employers to expand stated job

descriptions. . . .”). More importantly, however, there are

legitimate reasons for California to have imposed admittedly

56 DAHLIA V. RODRIGUEZ

exacting obligations on its police. Just as Caesar’s wife must

be above reproach, “peace officers have been held to a higher

standard than other public employees,” because that is

essential to “maintain the public’s confidence in its police

force.” Pasadena Police Officers Ass’n v. City of Pasadena,

797 P.2d 608, 611 (Cal. 1990) (“[T]he public expects peace

officers to be above suspicion of violation of the very laws

they are sworn to enforce” (internal quotation marks and

alterations omitted)).

2

Recently, the Supreme Court recalled that categorical

rules have the virtue of keeping “easy cases easy.” Florida

v. Jardines, 133 S. Ct. 1409, 1417 (2013). In that spirit, I

read Garcetti as fully compatible with a stated obligation of

California police officers to report crime—a subset of which

is to help expose and to assist in the investigation of crime

within their ranks.5 A California-police-officer plaintiff must

engage with “California’s jurisprudence defining such

duties.” Huppert, 574 F.3d at 707. After all, “the plaintiff

bears the burden of showing [his] speech was spoken in the

capacity of a private citizen and not a public employee.”

Eng, 552 F.3d at 1071.

When as here, a court is called on to evaluate whether a

complaint states a First Amendment retaliation claim, it

should evaluate its plausibility against this legal landscape.

Cf. Morales, 494 F.3d at 598 (“[T]he Milwaukee Police

Department requires officers to report all potential crimes.

5

See Dahlia v. Rodriquez, 689 F.3d 1094, 1105 (9th Cir. 2012)

(characterizing Huppert’s rule as one under which “whistleblowing on

fellow officers is part of a police officer’s official duties”).

DAHLIA V. RODRIGUEZ 57

By informing A.D.A. Chisholm of the allegations against

Chief Jones and Deputy Chief Ray, Morales was performing

that duty as well. Accordingly, his conversation with A.D.A.

Chisholm is not protected under the First Amendment after

Garcetti.”). In a similar vein, as mentioned above, the

Seventh Circuit considered whether a complaint stated a

claim for First Amendment retaliation in the context of state-

law duties:

Ms. Tamayo’s testimony was given to the

House Gaming Committee, a legislative

committee responsible for overseeing the

activities of the [Illinois Gaming Board], and

her testimony involved the alleged

wrongdoing of public officials in their

attempts to encroach on the agency’s

independence. As the Administrator of the

agency, she had a duty to see that the law was

administered properly. This responsibility

encompassed a duty to bring alleged

wrongdoing within her agency to the attention

of the relevant public authorities—here, the

House Gaming Committee.

Tamayo, 526 F.3d at 1091. That administrator sought to

“escape the strictures of Garcetti by including in her

complaint the conclusory legal statement that she acted ‘as a

citizen . . . outside the duties of her employment.’” Id. at

1092. Appropriately invoking Bell Atlantic Corp. v.

Twombly, 550 U.S. 544 (2007), the court did not credit these

legal conclusions “couched as a factual allegation.” Id.

Similarly, it would be up to a California police officer to

“plead[] factual content that allows the court to draw the

58 DAHLIA V. RODRIGUEZ

reasonable inference that” his department imposes less

stringent crime-reporting duties on its employees than

California courts routinely acknowledge. Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009).6 He would need to put at issue that

his is a “case[] where there is room for serious debate.”

Garcetti, 547 U.S. at 424. Such application of Garcetti is

also in line with the rule that, in measuring the sufficiency of

a complaint, “the reviewing court [should] draw on its

judicial experience and common sense”; it is eminently

logical that officers have precisely the duty that California

courts claim they do. Iqbal, 556 U.S. at 679.7

Assuming an officer’s “well-pleaded facts” do suggest

that Christal/Huppert are a poor fit for his circumstance, id.

at 679, then the case would proceed to summary judgment.

At that stage, evidence showing that his duties are truly

limited in the fashion he had alleged would need to be

proffered. Discovery generally will have unearthed the

relevant materials, and then the court would be free to discern

which statements, if any, fell outside the officer’s duties. See,

e.g., Brammer-Hoelter v. Twin Peaks Charter Acad.,

492 F.3d 1192, 1204–05 (10th Cir. 2007) (deciding at

summary judgment which statements by teachers passed and

failed Garcetti); Charles v. Grief, 522 F.3d 508, 513 n.17 (5th

6

An officer might do that by describing his employment contract, a

collective bargaining agreement, or a (formal or informal) policy limiting

his disclosure obligations.

7

Simply put, “[t]here is nothing startling in the conception that a public

servant’s right to retain his office or employment should depend upon his

willingness to forego his constitutional rights and privileges to the extent

that the exercise of such rights and privileges may be inconsistent with the

performance of the duties of his office or employment.” Christal, 92 P.2d

at 419.

DAHLIA V. RODRIGUEZ 59

Cir. 2008) (considering the “factual circumstances

surrounding the speech at issue” to decide “whether Garcetti

applies”).

The Court’s mission in Garcetti was to articulate a

“screening test a judge should apply” when a government

employee tried to invoke the First Amendment. See Garcetti,

547 U.S. at 445–46 (Breyer, J., dissenting). Concerned that,

in practice, not every police department in California expects

its officers to live up to the duties spelled out by its judiciary,

the majority decides to screen almost nothing. By contrast,

as I have explained, the approach faithful to Garcetti would

have been to preserve Huppert as the default presumption,

while also acknowledging the possibility that on occasion a

police officer might be able to avoid its application.

III

With utmost respect to my colleagues in the majority, I

find their “guiding principles” about implementing Garcetti

similarly untenable. Maj. Op. at 28.

First, the majority decides that if “a public employee

takes his job concerns to persons outside the work place in

addition to raising them up the chain of command at his

workplace, then those external communications are ordinarily

not made as an employee, but as a citizen.” Maj. Op. at 29.

By contrast, as California courts have made clear,8 the police

have a unique role in society that makes it inappropriate to

rely on case law involving other types of public employment

to decide that officers’ speech will be protected when

delivered “to persons outside the work place,” i.e., outside

8

See supra note 7 and accompanying text.

60 DAHLIA V. RODRIGUEZ

their own police department. Id. at 28; cf. Kendall Turner,

Dahlia v. Rodriguez: A Chance to Overturn a Dangerous

Precedent, 65 Stan. L. Rev. Online 59, 63 (2012) (astutely

perceiving that “[i]f a janitor cleaning Dahlia’s station had

noted the same illegal interrogation tactics, he could

presumably enjoy First Amendment protection while

reporting them because his job did not require him to expose

illegal activity”).9

The majority’s third “guiding principle”—an employee is

no longer carrying out his professional duties when he does

so in the face of a threat or directive by his supervisor to

break the law or protocol—follows the Second Circuit’s

misguided approach. See Jackler v. Byrne, 658 F.3d 225, 242

(2d Cir. 2011). Once again, the majority resorts to the

“practical-inquiry” passage for substantiation. Maj. Op. 31.

And once again, we “get[] Garcetti backwards.” Bowie v.

Maddox, 653 F.3d 45, 48 (D.C. Cir. 2011).

There are two key problems with the Second Circuit’s

approach that our court adopts today. First, it conflates the

“adverse-action” element of a retaliation claim and the

“pursuant-to-official-duties” test. Subtly, the Jackler rule

allows concern for what happened to a particular plaintiff to

color the threshold question about job duties. See Bowie,

653 F.3d at 48 (“[I]t is not difficult to sympathize with the

Second Circuit’s dubious interpretation of Garcetti. The

police chief’s instruction to Jackler and the actions he ordered

Jackler to take were clearly illegal. But the illegality of a

government employer’s order does not necessarily mean the

9

I would not adopt the majority’s second principle concerning the

“subject matter” of speech for the same reason. Maj. Op. at 30. A police

officer is not “an average public employee.” Id.

DAHLIA V. RODRIGUEZ 61

employee has a cause of action under the First Amendment

when he contravenes that order.”).

Second, Jackler’s holding subverts Garcetti by not

applying the Court’s categorical rule that the protected-status

inquiry hinges on job duties, and job duties alone. Jackler

involved a police officer who witnessed his sergeant lose his

temper and unjustifiably strike an arrestee. 658 F.3d at

230–31. After the officer reported what had happened in a

supplemental report, the sergeant pressured him to substitute

his honest report for one “which contained false, incomplete

and misleading information.” Id. at 231. He refused, and

was fired. Id. at 232.

In dismissing his claim under Garcetti, the district court

determined that it was “clear on the facts as alleged by

Jackler that he refused to withdraw or alter his truthful report

in the belief that the proper execution of his duties as a police

officer required no less.” Id. at 233. The Second Circuit did

not disagree that as a “police officer [he certainly] ha[d] a

duty not to substitute a falsehood for the truth.” Id. at 241.

But then, instead of applying “Garcetti’s employee-versus-

citizen rule,” the Second Circuit “created a significant

exception to it.” Caroline A. Flynn, Note, Policeman,

Citizen, or Both? A Civilian Analogue Exception to Garcetti

v. Ceballos, 111 Mich. L. Rev. 759, 775 (2013).

Today’s en banc court simply borrows Jackler without

discussing its rationale; but as the D.C. Circuit has explained,

that case is indefensible. The Second Circuit reasoned that

Officer “Jackler’s refusal to comply with orders to retract his

truthful Report and file one that was false has a civilian

analogue and that Jackler [thus] was not simply doing his job

in refusing to obey those orders from the department’s top

62 DAHLIA V. RODRIGUEZ

administrative officers and the chief of police.” Jackler,

658 F.3d at 241–42. The problem with this approach is that

while Garcetti did state that its abstract ambition was to

protect the kinds of speech for which there is a relevant

civilian analogue, 547 U.S. at 424, the Supreme Court

unambiguously settled on a categorical rule as opposed to the

potentially more calibrated (but also more subjective)

proposals floated in the trio of dissenting opinions. See

Bowie, 653 F.3d at 48 (“As all of the dissenting justices

recognized, Garcetti categorically denies recovery . . . to

plaintiffs who spoke pursuant to official duties.” (internal

quotation marks and alteration omitted)). The principal

dissent puts this matter as plain as can be, explaining that

“when a law enforcement officer expressly balks at a

superior’s order to violate constitutional rights he is sworn to

protect” the majority opinion places this “speaker[] beyond

the reach of First Amendment protection against retaliation.”

Garcetti, 547 U.S. at 433 (Souter, J., dissenting).10

I would therefore adopt neither the majority’s “contrary-

to-orders” maxim nor its rule about “disclosures outside the

chain of command.”

10

Although the academic literature—some of which has been cited in

the briefs—has urged us to do otherwise, our duty is to apply Supreme

Court precedent fairly rather than whittle it away in a case with

sympathetic facts. See, e.g., Turner, supra, at 64 (“While lower courts are

of course not free to ignore Garcetti, they are free to—and should—take

a narrow view of what constitutes an employee’s ‘official duties.’”); id. at

63 (“Of course, the fundamental problem may be with Garcetti itself

rather than Huppert.”); Flynn, supra, at 772 (although disposed to the

dissenting view as a policy matter, conceding, “in agreement with the D.C.

Circuit, that the Second Circuit misapplied Garcetti in Jackler: a civilian

analogue exception does not follow from either the language or the logic

of that decision”).

DAHLIA V. RODRIGUEZ 63

IV

Remaining now is the application of the foregoing

framework to Dahlia’s complaint.

A

1

As for Dahlia’s report to Internal Affairs (“IA”), the

majority states “[i]t is possible that Dahlia’s professional

duties required him to meet with IA at IA’s insistence, but it

is also plausible that Dahlia’s act of meeting with IA was

outside his job duties for the purpose of the First

Amendment.” Maj. Op. 34. Under the Supreme Court’s

Twombly and Iqbal precedents, it is plaintiff’s responsibility

to show that his speech qualifies for constitutional protection.

See Iqbal, 556 U.S. at 678 (the Rule 8(a) pleading standard

“asks for more than a sheer possibility . . . .[w]here a

complaint pleads facts that are merely consistent with a

defendant’s liability, it stops short of the line between

possibility and plausibility of entitlement to relief” (internal

quotation marks omitted)). The majority incants the term

“plausible” without pointing to allegations which make it so.

Dahlia’s complaint alleges that IA initiated an

investigation and came to interview him three times. Compl.

¶ 36. Dahlia does not say he sought out IA, nor does he claim

that he was free either to stay silent when asked about the

corruption he had witnessed, or to lie about it. Given the

64 DAHLIA V. RODRIGUEZ

inherent implausibility of that scenario,11 his complaint most

certainly lacks “factual allegations that ‘raise [his] right to

relief above the speculative level.’” Tamayo, 526 F.3d at

1092 (quoting Twombly, 550 U.S. at 555) (alteration in

original)).

2

Dahlia’s allegations about his “speech” to the County

Sheriff’s Department are similarly threadbare. The majority

concludes that the protected status of his speech likely turns

on “whether discovery reveals that Dahlia’s supervisors

instructed him to meet with and disclose information to the

[sheriff].” Maj. Op. at 36. Such construction of “pursuant to

official duties” is woefully cramped. See, e.g., Foley,

598 F.3d at 6 (“In analyzing whether Foley spoke as a citizen

rather than as the Chief of the Fire Department, we first note

that it is not dispositive that Foley was not required to speak

to the media.”); Brammer-Hoelter, 492 F.3d at 1203

(“[S]peech may be made pursuant to an employee’s official

duties even if it deals with activities that the employee is not

expressly required to perform.”); Williams v. Dallas Indep.

Sch. Dist., 480 F.3d 689, 694 (5th Cir. 2007) (per curiam)

(“Simply because Williams wrote memoranda, which were

not demanded of him, does not mean he was not acting within

the course of performing his job.”).

Without the majority’s errant gloss, Dahlia’s allegations

fall short. His complaint refers to no facts that suggest, let

alone plausibly suggest, that in cooperating with the sheriff’s

11

See, e.g., Jackler, 658 F.3d at 241 (“Of course a police officer has a

duty not to substitute a falsehood for the truth, i.e., a duty to tell ‘nothing

but the truth’. . . .”).

DAHLIA V. RODRIGUEZ 65

investigation of corruption in the Burbank Police Department

he was not “discharging the responsibilities of [his] office,

[but instead] appearing as “[John] Q. Public.” Tamayo,

526 F.3d at 1092. And as already detailed, the case law and

California Government Code Section 3304 indicate that

cooperating with an external law enforcement agency “is a

duty he ‘actually [was] expected to perform.’” Foley,

598 F.3d at 7 (quoting Garcetti, at 424–25).12

Thus, I must conclude that Dahlia’s complaint does not

state a claim for First Amendment retaliation upon which

relief may be granted.

B

In our circuit, though, Dahlia still would have one more

chance to pursue his claim. Although the odds are long,

Dahlia could conceivably satisfy the pleading standard as to

the protected status of his speech by adding particular

allegations about the nature of his crime-reporting duty at the

Burbank Police Department. In my view, he would be

entitled to be granted leave to amend his complaint, and it is

on that narrow basis that I would reverse the judgment

dismissing his complaint. See Lopez v. Smith, 203 F.3d 1122,

1130 (9th Cir. 2000) (en banc) (explaining that the court must

12

Because our court is admonished not to manufacture arguments for

parties, unlike the majority, I would not consider Dahlia’s report to the

Burbank Police Officers’ Association as an alternative form of protected

speech. See United States v. Williamson, 439 F.3d 1125, 1138 (9th Cir.

2006); Maj. Op. at 35. Dahlia has not claimed anything beyond his

statements to Internal Affairs, to the sheriff’s department, and his

unsubstantiated report to the FBI as constitutionally protected speech.

Nor, has he even alleged that “the retaliation he faced was directly caused

by this act of reporting.” Maj. Op. at 35.

66 DAHLIA V. RODRIGUEZ

“grant leave to amend even if no request to amend the

pleading was made, unless it determines that the pleading

could not possibly be cured by the allegation of other facts”).

I also agree with the majority to the extent that Dahlia’s

request for leave to amend to satisfy the adverse action

requirement must be honored. Maj. Op. at 36–37 nn. 22–23.

V

The malfeasance by officers of the Burbank Police

Department which Dahlia witnessed and the threats and

intimidation he endured—if true—are shocking and

intolerable. Yet we must stay our collective hand, ever

mindful that the “Constitution does not provide a cure for

every social ill, nor does it vest judges with a mandate to try

to remedy every social problem.” Plyler v. Doe, 457 U.S.

202, 253 (1982) (Burger, J., dissenting) (citing Lindsey v.

Normet, 405 U.S. 56, 74 (1972)). Alongside his First

Amendment cause, Dahlia brought claims under provisions

of California law that (1) protect public employees from

retaliation for disclosing an abuse of authority or a danger to

the public safety, California Government Code § 53298, and

(2) that shield employees who complain to a government

agency, California Labor Code § 6310. These are the kinds

of remedies that the Supreme Court has explained

whistleblowers should pursue in the absence of a

constitutional claim. See Garcetti, 547 U.S. at 425. However

righteous our aims, when we stretch the Constitution to match

our sense of justice, we exceed “[t]he judicial power” vested

to us in Article III and, by rendering state law nugatory,

disserve our federal union.

DAHLIA V. RODRIGUEZ 67

While I narrowly concur in the judgment, I must

respectfully dissent from the court’s erroneous analysis of the

First Amendment in this case.