Angelo Dahlia v. Omar Rodriguez

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANGELO DAHLIA, 

Plaintiff-Appellant,

v.

OMAR RODRIGUEZ, individually and

as a Lieutenant of the Burbank

Police Department; JOHN MURPHY,

individually and as a Lieutenant of

the Burbank Police Department;

EDGAR PENARANDA, individually No. 10-55978

and as a Sergeant of the Burbank

D.C. No.

Police Department; JOSE DURAN,

individually and as a Sergeant of  2:09-cv-08453-

MMM-JEM

the Burbank Police Department;

CHRIS CANALES, individually and OPINION

as a Detective of the Burbank

Police Department,

Defendants-Appellees,

and

CITY OF BURBANK, a municipal

corporation; TIM STEHR,

individually,

Defendants.



Appeal from the United States District Court

for the Central District of California

Margaret M. Morrow, District Judge, Presiding

Submitted May 8, 2012*

Pasadena, California

*The panel unanimously concludes this appeal is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

8799

8800 DAHLIA v. RODRIGUEZ

Filed August 7, 2012

Before: Kim McLane Wardlaw, Richard A. Paez, and

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Wardlaw

8802 DAHLIA v. RODRIGUEZ

COUNSEL

Michael A. McGill, Michael A. Morguess, and Russell M.

Perry, Lackie, Dammeier & McGill APC, Upland, California,

for plaintiff-appellant Angelo Dahlia.

Michael Simidijan and Kenneth C. Yuwiler, Silver, Hadden,

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

defendant-appellee Omar Rodriguez.

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

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

defendant-appellee Edgar Penaranda.

Patricia Kinaga and Arthur B. Walsh, Kinaga Law Firm, Los

Angeles, California, and Gregory Glenn Petersen, Hunt, Ort-

mann, Nieves, Lubka, Darling & Mah, Inc., Irvine, California,

for defendant-appellee Jose Duran.

Patricia Kinaga and Arthur B. Walsh, Kinaga Law Firm, Los

Angeles, California, and Gregory Glenn Petersen, Hunt, Ort-

mann, Nieves, Lubka, Darling & Mah, Inc., Irvine, California,

for defendant-appellee Chris Canales.

Carol Ann Humiston, Office of the City Attorney, Burbank,

California, and Richard Terzian, Burke, Williams & Sorensen

LLP, Los Angeles, California, for defendant-appellee City of

Burbank.

Eugene Philip Ramirez and Steven Jeff Renick, Manning &

Kass, Ellrod, Ramirez, Trester LLP, Los Angeles, California,

for defendant-appellee John Murphy.

Carol Ann Humiston, Office of the City Attorney, Burbank,

California, for defendant Tim Stehr.

DAHLIA v. RODRIGUEZ 8803

OPINION

WARDLAW, Circuit Judge:

I.

Four days after Angelo Dahlia, a detective in the City of

Burbank Police Department, disclosed the alleged use of abu-

sive interrogation tactics by his colleagues to the Los Angeles

Sheriff’s Department, he was placed on administrative leave

by Chief of Police Tim Stehr. That decision prompted Dahlia

to file a 42 U.S.C. § 1983 suit against Stehr and lieutenants,

sergeants, and a detective of the Burbank Police Department,

alleging that his placement on administrative leave was

unconstitutional retaliation for the exercise of his First

Amendment rights. The district court dismissed the suit, con-

cluding that our decision in Huppert v. City of Pittsburg, 574

F.3d 696 (9th Cir. 2009), controlled Dahlia’s case “unless and

until overruled” and that, therefore, Dahlia’s speech was not

protected by the First Amendment. The district court, cor-

rectly noting that “the nature of an official’s job duties are

generally a question of fact,” concluded that Huppert held “as

a matter of law that disclosure of incriminating facts is within

the official duties of a police officer in the State of Califor-

nia.” Although we have significant reservations about the

validity of the Huppert decision, we must agree with the dis-

trict court that, under Huppert, Dahlia’s disclosure to the Los

Angeles Sheriff’s Department was made in the course of his

official duties, and thus falls outside the protection offered by

the First Amendment. We therefore affirm the judgment of

the district court.

II.

We take the facts alleged in the complaint as recited by the

district court in its June 18, 2010, order granting defendants’

motions to dismiss:

8804 DAHLIA v. RODRIGUEZ

On December 28, 2007, an armed take-over robbery

occurred at the Portos Bakery in Burbank, Califor-

nia. On the morning of December 29, 2007, Dahlia

was called at home, informed of the robbery, and

advised to report to the police department to partici-

pate in the investigation. Dahlia was the “on-call

detective” and assisted Detective Pete Allen, the case

agent for the Portos robbery. Sergeant Penaranda,

the lead sergeant on the investigation, supervised

Dahlia and Allen; Lieutenant Murphy oversaw the

investigation.

During the evening of December 29, 2007, several

suspects were brought to the station for questioning.

At one point during the interviews, Dahlia allegedly

observed Lieutenant Rodriguez standing directly in

front of and over a suspect who was seated in a chair

immediately outside one of the interview rooms.

Dahlia asserts that he saw Rodriguez use his left

hand to squeeze the suspect’s throat, retrieve his

handgun with the right hand, place the barrel of the

gun directly under the suspect’s eye, and say “How

does it feel to have a gun in your face motherfuck-

er?” Over the course of the evening, Dahlia purport-

edly heard noises coming from the interrogation

rooms, including yelling and the sound of someone

being hit. He also contends he overheard officers

discussing abusive interrogation tactics.

After December 29, 2007, the Department’s Special

Enforcement Detail (“SED”) and its Vice Detail

assumed responsibility for the investigation.

Although Dahlia and Detective Allen remained the

investigating officers, they were allegedly excluded

from participating in interviews. Dahlia asserts that

he witnessed more illegal interrogation tactics as the

days continued.

DAHLIA v. RODRIGUEZ 8805

Dahlia met with Lieutenant Murphy to report these

violations. Dahlia told Murphy that “things were get-

ting out of hand, the interviews were getting too

physical, and too many people were doing their own

thing and were out of control.” Lieutenant Murphy

allegedly told Dahlia to “stop his sniveling.” When,

days later, Dahlia again pleaded with Lieutenant

Murphy, Murphy purportedly said that “[h]e didn’t

want to hear this shit again” and that “[h]e was tired

of all the B.S.” Dahlia contends that the interroga-

tions and physical beatings continued. [H]e alleges

that booking photos evidence the beatings, and

asserts that he observed SED team members and

Vice detectives put on fingerless gloves with carbon

or hard plastic knuckles while preparing to execute

a search warrant. Purportedly, the officers would

commented [sic] openly that they hoped to hit some-

one using the gloves. At one point, Chief of Police

Stehr appeared at a briefing and, on being informed

that suspects were not in custody, allegedly replied

“Well then beat another one until they are all in cus-

tody.”

In January 2008, Dahlia and Detective Ken Schiffner

met with Lieutenant Murphy and pleaded with him

to put an end to the illegal tactics. Although alleg-

edly Detective Schiffner stated that “the beatings

ha[d] to stop” and Dahlia said that “the madness

ha[d] to stop,” Lieutenant Murphy did not intervene

in the investigation. In February 2008, Dahlia alleges

he heard a loud commotion from the interview

rooms. On responding, Dahlia purportedly saw Ser-

geant Gunn standing and looking over the shoulder

of Sergeant Penaranda while the latter repeatedly

punched a suspect.

In April 2008, officers in the department learned that

Internal Affairs intended to investigate unlawful

8806 DAHLIA v. RODRIGUEZ

physical abuse of suspects and witnesses. Various

individual defendants allegedly threatened or intimi-

dated Dahlia to keep him from revealing his knowl-

edge of the abusive tactics used to interrogate

witnesses concerning the Portos robbery. Dahlia

contends that Lieutenant Rodriguez and Sergeant

Penaranda began visiting him in his office to monitor

what he was doing. Sergeant Duran purportedly vis-

ited Dahlia’s office on a daily basis and asked,

“What do you know?” and “What did you hear?”

Dahlia asserts that Lieutenant Rodriguez often went

out of his way to walk past Dahlia’s office so that he

could look in and monitor what Dahlia was doing.

He contends that Lieutenant Rodriguez’s intimida-

tion escalated and that he began to threaten Dahlia

not to say anything to Internal Affairs. Dahlia also

asserts that Sergeant Penaranda made threatening

public comments, referring to officers who blew the

whistle as “spineless pussies.”

On April 29, 2008, Internal Affairs interviewed

Dahlia. Immediately following this interview, Lieu-

tenant Rodriguez purportedly demanded that Dahlia

tell him what Internal Affairs had asked and how he

had responded. Dahlia told Lieutenant Rodriguez he

had not said anything. Dahlia contends that Rodri-

guez walked past Dahlia’s office “constantly” for the

remainder of that day. In the days following the

Internal Affairs interview, Sergeant Duran also

allegedly continued to come to Dahlia’s office to

monitor him. Dahlia asserts that Sergeant Penaranda

asked him about the interview, and that, although he

told Sergeant Penaranda he had not said anything,

Penaranda threatened Dahlia not to say anything. At

one point following the first interview, Detective

Canales purportedly told Dahlia to “watch [his]

back” and “keep [his] head down.”

DAHLIA v. RODRIGUEZ 8807

On May 8, 2008, Dahlia was interviewed by Internal

Affairs a second time. Prior to this interview, Lieu-

tenant Rodriguez and Sergeant Penaranda allegedly

contacted Dahlia and demanded that he not say any-

thing. Dahlia asserts that, after the interview, he

received a telephone call from Lieutenant Rodriguez,

who ordered Dahlia to meet him at McCambridge

Park in Burbank. Dahlia believed that an incident

was occurring and responded to the park. Lieutenant

Rodrigez and Sergeant Duran were purportedly wait-

ing for him in the parking lot. Dahlia contends that

Rodriguez angrily asked, “What the fuck did you tell

them?” Dahlia again asserted that he had revealed

nothing, but Rodriguez purportedly continued to

intimidate him. Dahlia maintains that, during the

thirteen days between Dahlia’s second and third

Internal Affairs interviews, Lieutenant Rodriguez

and Sergeants Duran and Penaranda continued to

harass, intimidate, and threaten him. On May 2, 2008

and May 14, 2008, Dahlia purportedly received e-

mails from Sergeant Penaranda, which threatened

Dahlia and demanded that he “stay loyal.”

On May 21, 2008, Dahlia was interviewed by Inter-

nal Affairs a third time. Immediately after Dahlia left

the interview, Lieutenant Rodriguez allegedly

appeared in the hallway, staring directly at him.

Dahlia contends that the harassing and threatening

behavior continued following this interview. At one

point, Sergeant Duran purportedly engaged Dahlia in

a conversation about a shooting in which Duran had

been involved a few years earlier and said, “You

know, there’s only two people who know what hap-

pened and one of them is dead.” Toward the end of

2008, Sergeant Penaranda and Lieutenant Murphy

told Dahlia that a federal investigation might take

place, and allegedly said that he should keep quiet.

On January 30, 2009, Lieutenant Murphy and Ser-

8808 DAHLIA v. RODRIGUEZ

geant Penaranda approached Dahlia at the police

shooting range. Lieutenant Murphy purportedly said,

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

heads are going to roll. Don’t say anything.” Ser-

geant Penaranda allegedly added, “It’s gonna be bad.

You can’t say anything.” Dahlia asserts that in early

February 2009, Lieutenant Rodriguez told him “not

to talk to the feds.” During March 2009, tension

within the department was allegedly high, and the

constant “monitoring” of Dahlia continued.

On April 2, 2009, Lieutenant Rodriguez called

Dahlia into his office. Rodriguez purportedly shut

the blinds and closed the door, retrieved his gun

from his holster, and placed it in a drawer. Dahlia

asserts that Rodriguez was angry and animated, and

at one point placed both hands on his desk, leaned

forward, and said, “I’m not a fucking cheese eating

rat.” He purportedly looked at Dahlia 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 the

meeting to the Burbank Police Officers’ Association

President, Michael Parinello, who reported it to the

Burbank City Manager.

On May 11, 2009, Dahlia was interviewed by the

Los Angeles Sheriff’s Department about the Portos

investigation. Dahlia asserts that, during the inter-

view, he disclosed the allegedly unlawful conduct

referenced in the complaint. On May 15, 2009,

Dahlia was placed on administrative leave pending

discipline [by Stehr], an action that Dahlia alleges

constituted retaliation for his protected speech in dis-

closing the unlawful conduct.

District Court Order Granting Defendants’ Motions to Dis-

miss, Dahlia v. City of Burbank, et al., No. 2:09-cv-08453

(C.D. Cal. June 18, 2010), ECF No. 70.

DAHLIA v. RODRIGUEZ 8809

III.

Dahlia filed his § 1983 complaint on November 17, 2009,

alleging seven claims: (1) retaliation against a public

employee for speech disclosing police misconduct in violation

of the First Amendment to the U.S. Constitution; (2) retalia-

tion against a public employee for disclosing information to

a government or law enforcement agency in violation of Cali-

fornia Labor Code § 1102.5; (3) retaliation against a public

employee for making an oral or written complaint to a gov-

ernmental agency in violation of California Labor Code

§ 6310; (4) retaliation against a public employee for disclos-

ing an abuse of authority or a substantial and specific danger

to public health or safety in violation of California Govern-

ment Code § 53298; (5) violation of the Bane Act, California

Civil Code § 52.1(b), which prohibits interference in the exer-

cise of constitutional rights; (6) intentional infliction of emo-

tional distress; and (7) negligent infliction of emotional

distress.

Police Chief Stehr moved for summary judgment on sev-

eral grounds, including qualified immunity. The district court

denied Stehr’s summary judgment motion without prejudice

on the ground that it was premature because Dahlia did not

have an adequate opportunity to take discovery. Stehr timely

appealed the district court’s denial of his motion for summary

judgment.1

The remaining named defendants, Lieutenants Rodriguez

and Murphy, Sergeants Penaranda and Duran, and Detective

Canales, moved to dismiss this case under Federal Rule of

Civil Procedure 12(b)(6). Granting these motions, the district

court found Dahlia’s § 1983 claim barred because his speech

1

In a memorandum disposition filed contemporaneously with this opin-

ion, we reverse the district court’s denial of qualified immunity for Stehr.

Dahlia v. Stehr,___ F. App’x ___, No. 10-55283, 2012 WL ___ (9th Cir.

Aug. 7, 2012).

8810 DAHLIA v. RODRIGUEZ

was made pursuant to his official duties and thus was not con-

stitutionally protected, and because placement on paid admin-

istrative leave is not an adverse employment action. The

district court accordingly dismissed Dahlia’s § 1983 claim

with prejudice, and declined to exercise supplemental juris-

diction over Dahlia’s state law claims.2 We now consider

Dahlia’s appeal from that dismissal.

IV.

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

district court’s final judgment dismissing with prejudice Dahl-

ia’s claims against Lieutenants Rodriguez and Murphy, Ser-

geants Penaranda and Duran, and Detective Canales.

We review de novo the grant of a motion to dismiss pursu-

ant to Federal Rule of Civil Procedure 12(b)(6). Madison v.

Graham, 316 F.3d 867, 869 (9th Cir. 2002). In so doing, we

accept “all factual allegations in the complaint as true and

construe the pleadings in the light most favorable to the non-

moving party.” Knievel v. ESPN, 393 F.3d 1068, 1072 (9th

Cir. 2005).

V.

[1] “It is well settled that the state may not abuse its posi-

tion 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) (quoting Pickering v. Bd. of Educ., 391

2

The district court dismissed Dahlia’s § 1983 claim against all defen-

dants except Stehr, correctly ruling that Stehr’s appeal of the denial of his

motion for summary judgment “divests the court of jurisdiction over the

action between Dahlia and Stehr.” The district court thus concluded that

it “lack[ed] jurisdiction to enter an order dismissing the First Amendment

claim against Chief Stehr.” It follows that this opinion has no bearing on

Dahlia’s § 1983 retaliation claim against Stehr.

DAHLIA v. RODRIGUEZ 8811

U.S. 563, 568 (1968)). We make a five-step inquiry to resolve

First Amendment retaliation claims:

(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 plain-

tiff’s protected speech was a substantial or motivat-

ing factor in the adverse employment action; (4)

whether the state had an adequate justification for

treating the employee differently from other mem-

bers 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 1070-71. The district court dismissed Dahl-

ia’s complaint, reasoning that he had not met his burden of

satisfying the Eng factors. In particular, the district court held

that Dahlia failed to establish (i) that his speech was “spoken

in the capacity of a private citizen and not a public employ-

ee,” id. at 1071, or (ii) that placement on administrative leave

constitutes an adverse employment action.

A.

[2] “[T]he plaintiff bears the burden of showing the speech

was spoken in the capacity of a private citizen and not a pub-

lic employee.” Eng, 552 F.3d at 1071 (citing Garcetti v.

Ceballos, 547 U.S. 410, 421-22 (2006)) (alteration in origi-

nal). “[S]tatements are made in the speaker’s capacity as citi-

zen if the speaker had no official duty to make the questioned

statements, or if the speech was not the product of performing

the tasks the employee was paid to perform.” Posey v. Lake

Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1127 n.2 (9th

Cir. 2008) (internal citations and quotation marks omitted).

[3] The distinction drawn in our First Amendment doctrine

between private and official speech is rooted in the Supreme

Court’s decision in Garcetti v. Ceballos. In Garcetti, a district

8812 DAHLIA v. RODRIGUEZ

attorney alleged unconstitutional retaliation for an internal

memorandum he had written that recommended dismissal of

a pending criminal prosecution because of purported police

misconduct. 547 U.S. at 414. The Supreme Court rejected his

claim, holding that “when public employees make statements

pursuant to their official duties, the employees are not speak-

ing as citizens for First Amendment purposes, and the Consti-

tution does not insulate their communications from employer

discipline.” Id. at 421.

In determining that the plaintiff in Garcetti wrote the mem-

orandum at issue pursuant to his official duties, the Supreme

Court explained:

The controlling factor in Ceballos’ case is that his

expressions were made pursuant to his duties as a

calendar deputy.[3] That consideration—the fact that

Ceballos spoke as a prosecutor fulfilling a responsi-

bility to advise his supervisor about how best to pro-

ceed with a pending case—distinguishes Ceballos’

case from those in which the First Amendment pro-

vides protection against discipline . . .

Ceballos wrote his disposition memo because that is

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

to do . . . . Restricting speech that owes its existence

to a public employee’s professional responsibilities

does not infringe any liberties the employee might

have enjoyed as a private citizen. It simply reflects

the exercise of employer control over what the

employer itself has commissioned or created . . . .

Contrast, for example, the expressions made by the

speaker in Pickering[4], whose letter to the newspaper

3

Ceballos did not dispute that he had prepared the memorandum “pursu-

ant to his duties as a prosecutor.” Id.

4

In Pickering, the seminal decision on public employee speech, the

Supreme Court held that Pickering’s speech was protected from retaliation

by the First Amendment. 391 U.S. at 574-75.

DAHLIA v. RODRIGUEZ 8813

had no official significance and bore similarities to

letters submitted by numerous citizens every day.

Ceballos did not act as a citizen when he went about

conducting his daily professional activities, such as

supervising attorneys, investigating charges, and pre-

paring 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 per-

formance.

Garcetti, 547 U.S. 421-23 (internal citations omitted) (foot-

notes added). Under Garcetti, the protection of the First

Amendment is thus limited where the speech is part of the

core tasks that the employee is “paid to perform,” but not

where the speech is merely related to the speaker’s public

employment. Id. at 421 (“The memo concerned the subject

matter of Ceballos’ employment, but this, too, is nondisposi-

tive. The First Amendment protects some expressions related

to the speaker’s job.”).

The parties in Garcetti did not dispute that the memoran-

dum at issue was prepared pursuant to the plaintiff’s official

duties, thus the Supreme Court did not have occasion to con-

duct an inquiry into the scope of the plaintiff’s professional

duties. Id. at 424. However, the Supreme Court issued guid-

ance to lower courts, noting that the “proper inquiry is a prac-

tical one” because:

formal job descriptions often bear little resemblance

to the duties an employee actually is expected to per-

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

written job description is neither necessary nor suffi-

8814 DAHLIA v. RODRIGUEZ

cient to demonstrate that conducting the task is

within the scope of the employee’s professional

duties for First Amendment purposes.

Id. at 424-25; see also id. at 424 (“We reject . . . the sugges-

tion that employers can restrict employees’ rights by creating

excessively broad job descriptions.”).

Three years after the Supreme Court’s decision in Garcetti,

a divided three-judge panel of our court decided Huppert v.

City of Pittsburg, 574 F.3d 696 (9th Cir. 2009).5 Huppert

involved a police officer who had participated, at the order of

his superiors, in several investigations regarding police cor-

ruption. Id. at 699. After the investigations concluded, and

despite orders that he not memorialize his findings, Huppert

drafted and circulated a report to his superiors and city offi-

cials. Id. Huppert also notified the FBI of the police corrup-

tion and cooperated with its investigation. Id.

The majority opinion held that Huppert’s cooperation with

the FBI—which took place on his own time, was not part of

his official job description, and was not at the behest of any

official orders—was, nonetheless, also part of his official

duties. In reaching that conclusion, the panel majority, inter-

preting “California’s jurisprudence,” held as a matter of law

that California police officers are required, as part of their

official duties, to disclose information regarding acts of cor-

ruption:

Though Huppert argues that he was repeatedly

informed by the FBI that his investigatory work was

outside his duties as a police officer, this is not

enough to overcome California’s jurisprudence

5

The two-judge majority included Judge Tallman and Judge Bertels-

man, Senior United States District Judge for the Eastern District of Ken-

tucky, sitting by designation. Judge W. Fletcher dissented from the

decision. See id. at 710.

DAHLIA v. RODRIGUEZ 8815

defining such duties. It is clear that in California a

police officer’s official duties include investigating

corruption, so as to “prevent[ ] the commission of

crime, . . . [and] assist[ ] in its detection.” While we

do not know the contents of any speech that Huppert

made, we do know that such conversations with the

FBI would have been to “disclos[e] all information

known to [Huppert]” regarding the alleged acts of

corruption within the PPD. This obviously encom-

passes his duty to uphold the law specifically

entrusted to California’s peace officers.

Id. at 707 (internal citation omitted). The panel majority

reached its conclusion regarding “California’s jurisprudence”

by relying on language from a single California Court of

Appeal decision from 1939, obviously decided long before

the Supreme Court’s decisions in Pickering and Garcetti. In

that case, the Court of Appeal opined broadly:

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 maintain-

ing 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 con-

stituted court or grand jury. It is for the performance

of these duties that police officers are commissioned

and paid by the community, and it is a violation of

8816 DAHLIA v. RODRIGUEZ

said duties for any police officer to refuse to disclose

pertinent facts within his knowledge even though

such disclosure may show, or tend to show, that he

himself has engaged in criminal activities.

Christal v. Police Comm’n of City & County of S.F., 33 Cal.

App. 2d 564, 567-68 (1939) (emphasis added) (citations omit-

ted).

The Christal decision was barely apposite to the facts pre-

sented in Huppert, and is even less so here. In Christal, the

Police Commission for the City and County of San Francisco

dismissed several police officers, who were themselves under

investigation by a grand jury on charges of corruption and

felonious misconduct. The grand jury subpoenaed both the

officers and their records; the officers refused to comply with

the subpoenas, asserting their Fifth Amendment rights against

self-incrimination. Id. at 566-67. As the California Court of

Appeal stated, “the main question involved is whether appel-

lants, while holding positions as peace officers, could exercise

the constitutional privilege of refusing to testify before the

grand jury under the circumstances and still insist upon retain-

ing their positions as police officers.” Id. at 567. The Court of

Appeal’s holding was that given the fact that the police offi-

cers were under investigation for public corruption, they

could not both assert their right against self-incrimination and

remain as police officers. The Court of Appeal explicitly lim-

ited its holding to this context: “We are concerned here only

with the result of the exercise of such privilege, by those hold-

ing 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.” Id.

The passage lifted from the Christal decision by the Hup-

pert majority directly follows this express limitation of the

decision, and must be read in that context. The passage in no

way applies to situations where a police officer, not charged

DAHLIA v. RODRIGUEZ 8817

with any corrupt or felonious activity but having information

about misconduct by other police officers, and directed by

superiors not to speak out or to testify, disregards that instruc-

tion and instead discloses information to third parties—the

classic whistleblower scenario. Thus, the holding in Huppert

is entirely unsupported by the sole California case it purports

to rely upon.

[4] Nevertheless, Huppert plainly holds that, as a matter of

California law, disclosure of police misconduct by fellow

police officers contrary to the instructions of superiors is a

core professional duty of California police officers, and such

speech is thus not protected by the First Amendment. We

have considered whether an employee’s speech was pursuant

to professional duty on three other occasions after Garcetti,

but those cases do not control the outcome here because none

involved an inquiry into the duties of a police officer. See

Marable v. Nitchman, 511 F.3d 924 (9th Cir. 2007) (ferry

engineer); Freitag v. Ayers, 468 F.3d 528 (9th Cir. 2006)

(prison guard); Eng, 552 F.3d 1062 (deputy district attorney).

We feel compelled, like the district court, to follow Huppert,

despite our conclusion that it was wrongly decided and unsup-

ported by the sole authority it relies upon. If Huppert, who

independently cooperated with the FBI to expose and investi-

gate corruption and memorialized that corruption against his

superiors’ orders, was acting “pursuant to his professional

duties,” then Dahlia, who cooperated with a Los Angeles

Sheriff’s Department investigation of police misconduct, must

also have been acting pursuant to his professional duties.

B.

[5] We acknowledge that we are bound by Huppert,

because a three-judge panel may not overrule a prior decision

of our circuit unless it has been effectively undercut by subse-

quent higher authority. Miller v. Gammie, 335 F.3d 889, 899

(9th Cir. 2003). Because Huppert was decided after Pickering

and Garcetti, we cannot conclude that “the reasoning or the-

8818 DAHLIA v. RODRIGUEZ

ory of [Huppert] is clearly irreconcilable with the reasoning

or theory of intervening higher authority.” Id. at 893. It is

clear, however, that we have significant reservations about the

holding in Huppert, which appears to be incorrectly decided,

conflicts with the Supreme Court’s First Amendment public

employee speech doctrine, and chills the speech of potential

whistleblowers in a culture that is already protective of its

own.

The Huppert holding, which determines the scope of a

police officer’s professional duties as a matter of California

law in the First Amendment retaliation context, conflicts with

the Supreme Court’s instruction in Garcetti that we make a

practical, factual inquiry into the job responsibilities of each

public employee plaintiff. As the Supreme Court stated:

We reject, however, the suggestion that employers

can restrict employees’ rights by creating exces-

sively broad job descriptions. 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 conduct-

ing the task is within the scope of the employee’s

professional duties for First Amendment purposes.

Garcetti, 547 U.S. at 424-25 (emphasis added) (citations

omitted).

The Huppert majority did exactly what the Supreme Court

prohibited in Garcetti. It relied on a generic laundry list of

police officer duties in an out-of-context California appellate

court decision to determine, as a matter of law, that Huppert’s

speech fell within his job duties. Huppert, 574 F.3d at 707

(citing Christal, 33 Cal. App. 2d at 567-68). The majority did

not conduct a “practical” inquiry tailored to Huppert’s job

duties. Instead, it relied on a “broad job description,” which

DAHLIA v. RODRIGUEZ 8819

the Supreme Court has noted “often bear[s] little resemblance

to the duties an employee actually is expected to perform.”

Garcetti, 547 U.S. at 424-25.

The conclusion, as a matter of law, that whistleblowing on

fellow officers is part of a police officer’s official duties not

only conflicts with Garcetti, but also with our own post-

Garcetti case law in the First Amendment retaliation context,

which consistently holds that determining the scope of a

plaintiff’s professional duties requires a factual inquiry tai-

lored to the plaintiff’s individual circumstances. See, e.g.,

Eng, 552 F.3d at 1071 (“[T]he question of the scope and con-

tent of a plaintiff’s job responsibilities is a question of fact”);

Robinson v. York, 566 F.3d 817, 823-24 (9th Cir. 2009) (hold-

ing that the “scope of [Plaintiff’s] duties is a question of

fact”); Posey, 546 F.3d at 1129 (holding that the “scope and

content of a plaintiff’s job responsibilities can and should be

found by a trier of fact”); Freitag, 468 F.3d at 546 (holding

that determining the scope of professional duties requires

“factual determinations”).

We are mindful of the Supreme Court’s caution against

“the vexing nature of the distinction between questions of fact

and questions of law,” Pullman-Standard v. Swint, 456 U.S.

273, 288 (1982) (citations omitted), and acknowledge that the

“ultimate constitutional significance of the facts as found is a

question of law.” Eng 552 F.3d at 1071 (citing Posey, 546

F.3d at 1129). However, our case law is unequivocal that “the

question of the scope and content of a plaintiff’s job responsi-

bilities is a question of fact.” Eng 552 F.3d at 1071; see also

Karl v. City of Mountlake Terrace, 678 F.3d 1062, 1071 (9th

Cir. 2012) (“The scope and content of a plaintiff’s job respon-

sibilities is a question of fact . . . .”); Posey, 546 F.3d at 1129.

Indeed, in Posey, we expressly considered and rejected the

view that whether the speech in question was spoken as a

public employee or a private citizen is solely a question of

law. 546 F.3d at 1129 (“Upon consideration, we agree with

the Third, Seventh, and Eighth Circuits and hold that the

8820 DAHLIA v. RODRIGUEZ

determination . . . presents a mixed question of fact and law.”).6

Regardless of how we have classified the inquiry, we have

repeatedly determined the scope of a plaintiff’s professional

duties by conducting a factual inquiry tailored to the circum-

stances of each particular plaintiff. See Eng, 552 F.3d at 1071;

Robinson, 566 F.3d at 823-24; Posey, 546 F.3d at 1129;

Freitag, 468 F.3d at 546.

The generic description of a police officer’s professional

duties in Christal does not reflect an individualized factual

assessment of either Huppert or Dahlia’s responsibilities, and

thus, under Garcetti and our own First Amendment case law,

cannot control the disposition of their First Amendment retali-

ation claims. Were we and the district court not bound by

Huppert, the district court would have been free to consider

the scope of Dahlia’s professional duties—and whether he

was acting in his capacity as a private citizen—as a question

of fact.

Moreover, as we noted earlier, the Huppert majority’s reli-

ance on the generic language from Christal to determine the

scope of a police officer’s official duties is misplaced. Chris-

tal is a nearly seventy-three year old state court case, written

6

In Posey we joined the Third, Seventh, and Eighth Circuits in rejecting

the Fifth, Tenth, and D.C. Circuits’ views that the inquiry is a question of

law. 546 F.3d at 1128. However, even several of the circuits that classify

the inquiry as a “question of law” nevertheless, unlike Huppert, undertake

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

stances. See, e.g., Charles v. Grief, 522 F.3d 508, 512-13 (5th Cir. 2008)

(analyzing plaintiff’s particular professional role and duties, even if ulti-

mate question of whether speech is entitled to protection is a legal ques-

tion); Wilburn v. Robinson, 480 F.3d 1140, 1150-51 (D.C. Cir. 2007)

(conducting factual inquiry into nature of plaintiff’s particular professional

responsibilities). As do other circuits not discussed in Posey. See, e.g.,

Trigillo v. Snyder, 547 F.3d 826, 829-30 (7th Cir. 2008) (interpreting Gar-

cetti to conclude that “to define [plaintiff]’s official duties, we must do

more than look to general statutes. Our task is a practical one that requires

a close look at . . . the expectations and responsibilities that came with

[plaintiff’s] job.”).

DAHLIA v. RODRIGUEZ 8821

decades before Pickering, Garcetti, or any other applicable

Supreme Court precedent. In determining the scope of an

employee’s official duties, we are bound by the approach

taken by the Supreme Court in these more recent cases. Fur-

ther, as noted, Christal did not address the factual context in

either Huppert or Dahlia’s case where an officer chose to

speak out, as opposed to refusing to speak, to reveal alleged

corruption to third parties.

Even if we were to accept the generic list of police officer

duties in Christal as an accurate portrayal of California law,

neither Huppert nor Dahlia violated any enumerated duty.

Indeed, Christal states that police officers have a “duty to dis-

close . . . facts [concerning misconduct] to their superiors and

to testify freely concerning such facts when called upon to do

so before any duly constituted court or grand jury.” Christal,

33 Cal. App. 2d at 567-68. In both Huppert and the case

before us, the speech at issue was not a disclosure to superi-

ors, nor was it in front of a “duly constituted court or grand

jury,” but rather was made to external, independent investiga-

tors (the FBI and Los Angeles Sheriff’s Department, respec-

tively).

The upshot of Huppert is a rule, binding only in our Cir-

cuit, that the act of whistleblowing is itself a professional duty

of police officers, thus stripping such speech of the First

Amendment’s protection. Where we draw the line between

professional duty and private speech has significant implica-

tions for potential whistleblowers. Indeed, as the Supreme

Court has noted:

[P]ublic employees are often the members of the

community who are likely to have informed opinions

as to the operations of their public employers, opera-

tions which are of substantial concern to the public.

Were they not able to speak on these matters, the

community would be deprived of informed opinions

on important public issues. The interest at stake is as

8822 DAHLIA v. RODRIGUEZ

much the public’s interest in receiving informed

opinion as it is the employee’s own right to dissemi-

nate it.

City of San Diego v. Roe, 543 U.S. 77, 82 (2004) (internal

citation omitted); see also See v. City of Elyria, 502 F.3d 484,

493 (6th Cir. 2007) (“Statements exposing possible corruption

in a police department are exactly the type of statements that

demand strong First Amendment protections.”). Huppert’s

treatment of the reporting of police misconduct and corruption

as a routine professional duty belies the personal and profes-

sional hazards of such acts. If reporting police abuse and mis-

conduct during the course of an internal investigation, or even

a federal or third-party investigation, is considered a profes-

sional duty, and is thus unprotected speech, as a matter of

law, it is inevitable that police officers will be even less will-

ing to report misconduct than they are now, particularly

regarding their superiors. The reasoning in Huppert that pro-

fessional 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.

C.

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.

“To constitute an adverse employment action, a govern-

ment act of retaliation need not be severe and it need not be

of a certain kind. Nor does it matter whether an act of retalia-

tion is in the form of the removal of a benefit or the imposi-

tion of a burden.” Coszalter v. City of Salem, 320 F.3d 968,

975 (9th Cir. 2003). The proper inquiry is whether the action

is “reasonably likely to deter employees from engaging in

protected activity.” Id. at 976; see also id. (“We hold that if

DAHLIA v. RODRIGUEZ 8823

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 Amend-

ment],’ they will have established a valid claim under

§ 1983.”) (internal quotations and citation omitted) (alter-

ations in original).

[6] We have never before decided whether placement on

administrative leave constitutes an adverse employment action.7

See Lakeside-Scott v. Multnomah County, 556 F.3d 797, 803

n.7 (9th Cir. 2009) (declining to reach the question of whether

administrative leave with pay is an adverse employment

action because it had not been properly preserved for appeal).

Even if we were inclined to decide the issue, we would have

insufficient facts in the record to do so given the procedural

posture of the case. We are unable to assess the particular

form of administrative leave imposed upon Dahlia. We have

only the allegations in the complaint as to the nature of Dahl-

ia’s administrative leave—that it prevented Dahlia from tak-

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

holiday pay, and prevented him from furthering his investiga-

tive experience.

[7] These allegations, if proven, however, may very well

constitute an adverse employment action. Dahlia’s allegations

appear to satisfy the Coszalter standard, as the loss of pay,

opportunities for investigative experience, inability to take a

promotional exam, and the general stigma resulting from

placement on administrative leave appear “reasonably likely

to deter employees from engaging in protected activity.” Cos-

zalter, 320 F.3d at 976. Review of the Title VII case law that

gave rise to the Coszalter standard also suggests that even

administrative leave with pay constitutes an adverse employ-

7

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

appeal: whether 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. Butler v. Curry, 528 F.3d 624, 642 (9th Cir. 2008).

8824 DAHLIA v. RODRIGUEZ

ment action. After all, temporarily placing an employee on

administrative leave with pay pending a discipline determina-

tion is clearly “a tangible change in working conditions that

produces a material employment disadvantage.” Spears v.

Missouri Dep’t of Corr. and Human Res., 210 F.3d 850, 853

(8th Cir. 2000). It also results in “a less distinguished title, a

material loss of benefits, [and] significantly diminished mate-

rial responsibilities.” Hilt-Dyson v. City of Chi., 282 F.3d 456,

465-66 (7th Cir. 2002). And finally, it constitutes a “materi-

ally adverse change in the terms and conditions of employ-

ment.” Joseph v. Leavitt, 465 F.3d 87, 91 (2d Cir. 2006).

VI.

[8] Although we believe that Huppert was wrongly

decided, we are bound to follow it. Miller, 335 F.3d at 899.

We therefore affirm the district court’s grant of defendants’

motions to dismiss Dahlia’s complaint.

AFFIRMED.