Public Citizen seeks rehearing of "dangerous" employee speech case

Burbank (Calif.) detective Angelo Dahlia blew the whistle after he witnessed his fellow officers engaging in abusive conduct against suspects, including physical beatings, grasping a suspect around the throat, and placing a gun directly under a suspect’s eye; and after officers threatened Dahlia himself to keep him quiet (for instance, one officer called Dahlia into his office, brandished a gun, and stated, “Fuck with me and I will put a case on you, and put you in jail”). In retaliation for disclosures to his officers association and to another law enforcement agency, Dahlia was suspended, an action that cost him pay and promotional opportunity.

Dahlia sued under the First Amendment, but his case was dismissed, and the Ninth Circuit affirmed. The court’s reasoning was that, under Garcetti v. Ceballos, 547 U.S. 410 (2006), the First Amendment protects a public employee only when speaking “as a citizen” not as part of his job duties, and uncovering illegal activity is inherently part of the job of every California officer.

Today Public Citizen, working with a California law firm that represents officers, filed a petition for en banc review. Several aspects of the decision are notable. First, the panel thought its own decision was incorrect but that it was bound by a prior Ninth Circuit case that had plucked a general job description for police officers from a 1939 state case and held that reporting wrongdoing is part of the job duties of every California police officer -- and therefore all officer whistleblowing is unprotected speech. In unusually strong terms, the panel called out the prior decision as "wrongly decided and unsupported by the sole authority it relies upon." The Supreme Court in Garcetti said that the scope of job duties is a "practical" inquiry, and the rest of Ninth Circuit law, as well as that of other circuits, rejects categorical approaches to the scope-of-job-duties question, which is treated a question of fact.

Beyond the intra- and inter-circuit split, there is a more fundamental question of public policy: what type of employee speech ought to be protected? Defining an officer’s job duties so broadly that any report of misconduct is unprotected speech will destroy what little protection there is for courageous whistleblowers like Dahlia, who may be the public’s best (or even only) available source of information about police corruption and abuse. The result of such a rule would be to deter important whistleblowing speech on matters of serious public concern, such as (here) whether the Burbank Police Department is plagued by a culture of violence and impunity that results in the beating, choking and threatening of suspects. It is this result that led the panel in this case to describe its own holding as "dangerous."

Let's hope the full court agrees, and rehears the case en banc.