U.S. Supreme Court Declines To Hear City’s Appeal In Retaliation Case
by Michael P. Stone, Esq.
Muna Busailah, Esq.
On February 24, 2014, the U.S. Supreme Court denied the City of Burbank’s petition to grant hearing (certiorari) in City of Burbank v. Angelo Dahlia, No. 10-55978. Thus, the Ninth Circuit’s en banc (9-2) decision in Dahlia v. Rodriguez 689 F.3d 1094 (9th Cir. 2012) becomes the law of the Circuit and a powerful precedent elsewhere in the country in understanding how and when the First Amendment protects police officers who make good faith reports about police corruption existing within their own agencies, from retaliation by their employers.
In 2006, the U.S. Supreme Court backpedaled on 38 years of federal courts’ First Amendment protection for public employee “protected speech” in Garcetti v. Ceballos, 547 U.S. 410 (2006). Since 1968 (Pickering v. Board of Education, 391 U.S. 563 ) when the Court first embraced the principle that a public employee could not be punished or retaliated against for speech about a matter of important public concern, there followed an unbroken line of Supreme Court and federal appellate court decisions that hued faithfully to the Pickering principles. But in Garcetti, the Court took public employee First Amendment law in a new direction, and in the process, gutted the constitutional protection for “protected speech” that occurs within the employee’s core job duties. According to Garcetti, if the employee speaks as part of his or her job duties, he cannot be “speaking as a citizen” (hereafter, “the Garcetti rule”).
The Garcetti rule has forced the federal appellate and trial courts in every case, to embark upon a quest in every case, to search out the essential functions and duties of the employee’s job. The anomaly created for the police profession is this: “If, as a police officer, you want constitutional protection from retaliation for your revelations of internal corruption, do not report to your chain of command or to any official within your agency in pursuit of your duty to report misconduct; rather make your report to the electronic or print media.” Then, you will be acting as a “citizen,” because no job duty requires you to “go public” with your revelations. This is surely an unwelcome precedent on a public policy level, for our profession. Employees who actually fear employer retaliation will not invite it by reporting corruption to supervisors. And, many employees simply will not go to the media because it is counterintuitive to loyalty to the profession, which is after all, what motivates them to report corruption. These employees are not renegades, and going to the media seems to them to be a betrayal of the code of conduct they swore to uphold.
These are precisely the circumstances that confronted Burbank Police Detective Angelo Dahlia. Dahlia did not suffer from some undefined, abstract fear of retaliation for reporting the brutality and excessive force he witnessed. Instead, he and his family were threatened, intimidated and harassed to not report what he saw, by the corrupt officials who were responsible for the misconduct and for covering it up,
As described at length in the Dahlia case, Detective Angelo Dahlia witnessed shocking incidents of beatings and excessive force during a robbery investigation. He was immediately subjected to a pattern of threats and intimidation by a corrupt chain of command in the Burbank Police Department and a relief from duty (assignment to home with pay). The pattern of harassment and threats continued unabated through internal, Sheriff’s Department, and FBI investigations. Unable to abide any more, Dahlia sought the help of his association president, and reported the assaults to the sheriff’s department and the FBI. Four days after his sheriff’s report, he was relieved of duty, and ultimately fired for “dishonesty.”1 Dahlia filed suit in U.S. District Court in Los Angeles. He sued for retaliation in violation of the First Amendment, and supplemental state law claims.
The District Court judge dismissed his federal claims based on his alleged “duty” to report criminal misconduct to every (any) law enforcement agency. Thus, whether he reported to the FBI or to another state or local agency, he was fulfilling a core duty of his job and could not therefore, be acting as a “citizen,” reasoned the judge. Therefore, his reports were stripped of First Amendment protection.
Dahlia’s appeal was first heard by a 3-judge panel of Circuit judges, who reluctantly upheld the District Court judge, affirming the dismissal, based upon an earlier Ninth Circuit case, Huppert v. City of Pittsburg, 574 F.3d 696 (9th Cir. 2009), which inexplicably held that a police officer’s report to the FBI about internal corruption within the Pittsburg, California Police Department was part of his core duties, and therefore lacked constitutional protection.
Dahlia’s counsel, Michael Morguess, and a public interest law firm in Washington, D.C., named Public Citizen Litigation Group, sought rehearing en banc (by the full court) in the Ninth Circuit. The Riverside Sheriffs’ Association and its Legal Defense Trust, recognized that the Dahlia case provided an excellent opportunity to (1) restore some of the constitutional protection for the nation’s police whistleblowers, laid waste by the Huppert decision, and (2) to bring the rule of Garcetti into common sense application. Commissioned by the Riverside Sheriffs’ Association (RSA) and the Legal Defense Trust, the authors of this paper sought leave from the Ninth Circuit to join in the case as Amicus Curiae (“friend of the Court”), which was granted. RSA’s Amicus brief asked the en banc Ninth Circuit to do four (4) things:
1. Overrule the Huppert case as bad law;
2. Find that placement on administrative leave, even with pay, is a sufficiently adverse action to constitute retaliation;
3. Find that the question of an officer’s job duties is one of fact for the jury, contrary to Huppert; and
4. Find that Dahlia’s report to the Los Angeles County Sheriff’s Department or the FBI was protected speech; thus, the Garcetti rule should only be applied where a police officer’s report of corruption is through the chain of command, in support of the duty to report misconduct to a superior.
The Ninth Circuit’s en banc 9-2 decision embraced each of these points.
The Supreme Court’s rejection of Burbank’s petition means that Burbank has exhausted its legal options to overturn the Ninth Circuit’s opinion in Dahlia. The case is nothing short of a landmark along the pathway of public employee constitutional law development. Police members can now rest in the assurance that when they make reports of internal cooperation voluntarily to outside law enforcement agencies, they are, once again, protected by the First Amendment from retaliation.
Michael P. Stone and Muna Busailah and are the founding partners of Stone Busailah, LLP and participated in the Dahlia v. Rodriguez decision as amicus curiae. Michael P. Stone teaches First Amendment law for the Americans For Effective Law Enforcement (AELE) in Chicago. They are General Counsel for the Riverside Sheriffs’ Association and the Legal Defense Trust.
1 A new department administration fired Dahlia purportedly because he failed to tell what he knew to Burbank police investigators first, while under the fear of threats and intimidation, that the Ninth Circuit judges found was “shocking and intolerable,” and easily capable of deterring protected speech.
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[My Representative] truly is an exceptional attorney. He has always represented me with honesty and compassion. Well Done.
- Jaime Kim Oakland POA
My rep did a good job. First we met and he explained that there might be culpability on my part but not nothing close to the allegations. I appreciated his honesty as we have all done things that can be taken out of context so it was important he told me to realize that.
- Keith Stiver Hayward POA
[My representative] brings a superlative reputation, a comforting and confidence building demeanor and a clear expertise to the table. In particular I appreciate her philosophy that she gives her total undivided attention to her clients during their appointments.
- Andrew Hill Statewide University PA
I have used this law firm for union related business for the last several years. It was a no brainer to call them for LDF.
- Katie Angermiller Tuolumne Co DSA
I was very satisfied with the work the LDF performed. The lawyers and clerical staff at [law firm] were all very kind, professional and they always assisted me when I called and never made me feel like I was a burden. Thank you LDF!
- Anthony Alonzo South Gate POA
Very pleased with the way the process was explained to me. Received updated info faster than I expected. Overall a good experience in a not so good situation. Thanks to LDF.
- Kip RIngen Lake Co DSA
My LDF rep kept me well informed concerning the progress of my case. I was extremely satisfied with the service I received. Thanks.
- Kelly K. Roe San Joaquin Co Corr Officers
[My representative] did a fantastic job at returning my phone calls and keeping me informed of any and all information pertaining to my case. I would recommend him to anyone.
- Jeff Stanley Upland POA
Excellent program, no one should be without this coverage.
- James Walker Yakima Police Patrolsman Assn
This attorney and her legal team were one of the best I’ve seen and interacted with. I was always in the loop and constantly updated on the case status. I would use (my attorney) again if the need came and recommend her to anyone.
- Greg Harman Kensington POA
[My representative] is the best!!
- Christopher Delaney Upland POA
Your rep was very personal. Even though my case involved something minor, your rep made me [feel] my case was his most important. I am very satisfied with my LDF team.
- Roy Iler San Benito CO LEM
[My representative] always returned phone calls and let me know if he was contacted with information.
- Gerhard Wallace Santa Clara Co DSA
I think that [my representative] did a great job in presenting my case. I would recommend her to any deputy (officer) facing disciplinary action. My case was minor compared to other cases but [she] still did a professional job.
- Brent Teasley ERS/Reno PSAEA
[ My representative ] was bogged down with multiple cases when he represented me, but I feel he did an excellent job. I would not have wanted anyone else to represent me during a very troublesome time.
- German Alvarez Anaheim PA
[My representative ] was great!
- Christopher Adams Modesto POA
Thank you for all your help!
- Shandon Murphy San Mateo POA
Great work! Thank you so much!
- Andrea Salas Sonoma County DSA
[My Representative] was great! Thank you.
- Jack Ellis Lompoc POA
An excellent plan. Very valuable to its members.
- Rodd N. Joseph Clearlake MMA
I appreciate the fact that my representative met with me in a social setting prior to the interview, during which time she learned the facts of the case. She was prepared for the interview. She seemed to have a genuine interest in my case.
- Erick Gaunt Palos Verdes POA
- Gary J. Foppiano Oakland POA
[My representative] has been in my corner for 28 years. I have been represented by this firm probably 6 times in my career from minor to major discipline cases with a great outcome for me. They're batting 100%
- Brendan Dolan Milwaukee PA
Everything went very smooth and they handled everything! Thank you.
- Kristen Patterson Contra Costa Co Prob. Assn.
[My representative] was helpful and made me feel supported. I got the results I desired. Very pleased with the process.
- Nicholas Belliveau Sebastopol POA
High quality service, proficient, well informed. Overall, very happy with experience.
- Alfredo Hernandez El Centro POA
[My representative] was very attentive, [informative] and knowledgeable. He spoke very clearly and explained things in ways easy to understand. [He] made me feel like he truly cared about what was going on with this case and me. Not to mention [he] was funny and witty, traits which made him trustworthy and someone who would stand by me and other police officers.
- Brad Young Oakland POA
[My representative] is an excellent attorney and I am very happy he picks up the phone and answers my questions whenever possible.
- James Beckman Miracosta College POA
Excellent service everytime.
- Dennis W. Ostini Lake County DSA
[My Representative] was fantastic, knowledgeable, professional and easy to talk and work with. Even though the allegations lodged have not been resolved, [My Representative] continued to communicate with me, to offer his assistance.
- Adam Laird Eureka POA
Dear PORAC Legal Defense Fund, This email has been weighing on my heart and should have been sent a long time ago. However, time seems to move fast even though your life has been put on hold. I have been on administrative leave since December of 2012. In April of 2013, I was arrested for the performance of my duties. Since the administrative side this case has not been resolved, I won't be getting into specific details regarding my case. However, I will say that I never thought that my life would turned upside down by doing the job that I love, and doing it in a way that I had been trained. I have been in Law Enforcement for 10 years, and I have been paying my monthly dues all along. I never really understood how important paying dues might be for me, I just thought it was the "cost of business". After being arrested, I understood the real worth of that investment. Because of politics, my case was given the "full court press". On January 3rd of 2014, the case against me was dismissed. It took no less than 5 experts to convince the Humboldt County District Attorney's Office to request dismissal. The time, effort, and money that this case cost couldn't have been endured by me as the sole provider of a family of four. LDF was there, big time. The panel attorney's under LDF were the best in the business. In the uncertain time during the criminal process, I couldn't have imagined how much help they could be. What a relief to know that LDF had my back. I am used to defending those who can't defend themselves. That's my job. When I was defenseless, LDF and the attorneys assigned to my case were my advocates and defenders. I thank you. My criminal attorney said it best at the conclusion of my criminal case: "Adam and his family are thankful that they can now move forward. The evidence showing Sgt. Laird was innocent was overwhelming. The expert EPD hired said that the suspect was rising up when Sgt. Laird pushed him back to the ground. The two experts that the DA’s office hired said that the force was reasonable and appropriate. The defensive tactics instructor who trained Adam said he acted consistent with his training in apprehending a high risk suspect in a dangerous situation. In total, five separate police practices experts reviewed the case and unanimously said Sgt. Laird acted appropriately". "It is hard to imagine what it must be like to risk your life apprehending a known gang member only to be charged with using excessive force when the suspect stated that he did not even feel the contact at issue. It is simply bizarre that Sgt. Laird was ever charged with a crime". Thank you. My family and I will forever be grateful for your service, Sergeant Adam Laird
- Martha Tschetter Carson City Sheriffs PA
The LDF process was painless and I was able to get immediate representation in an urgent time of need. Thank you LDF
- Robert Hartman Contra Costa Co DSA
Quick response, experienced and knowledgeable attorney which assisted in every step. [My representative] kept me apprised through the process. Thank you.
- Melissa Geraci Oakland POA
This is my 1st time using LDF and was very pleased with the service I got. [My representative] was so friendly & always returned my calls & even called to update me without provocation.
- William Pryor Statewide University PA
Very helpful program. Helped keep department personnel focused on the issue regardless of their personal issues.
- David Baker Placerville POA
My experience through dealing with this matter was horrific. Without the efforts of the LDF and more specifically [my representative], I would most certainly have fallen victim to a corrupt and unethical administration. The LDF has saved my career and brought me justice.
- Rodney Kirkland Oakland POA
Being a police officer in the city of Oakland, I appreciate the services that are offered.
- Jason Boust Sanger POA
My rep was very helpful in explaining the processes and stayed in contact throughout the ordeal.
- Ernest Marugg San Diego Deputy DA Association
The LDF responded immediately upon my request for counsel. LDF provided the best representative I could receive! When I called LDF for advice, I was given advice again immediately. Thank you LDF for your concern.
- Erik Kusmerz Lyon Co SEA
Amazing job, Thank you.
- Sean Tinney Berkeley PA
[My representative] was very attentive to my case and thorough with his investigation. I would request [him] again in the future.
- Carl Miller Clearlake POA
- Richard Salcido Brea PA
LDF is a great organization that not only helps their clients but many of those around them such as coworkers and family members.
- Dan Lovelace Chandler LEA
Thank you for the funding and support. I would be in jail right now if it were not for LDF. I would not have had the funding to pay for the case. It was a tremendous help having [my representative] and his support team and the many experts supplied by LDF. I speak for myself, my family and other members of my association.
- Dwayne Sue Oakland POA
[My representative was] great! She kept me informed and was very professional. She would be my choice if I should need her services in the future! (But I hope I won't) Thanks!
- Katherine Comesana Mountain View POA
Hope to never in a situation again, however, glad to know that LDF is there to help.
- Brian Schopf Elk Grove POA
Keep up the good work.
- Miguel Masso Oakland POA
[I'm very satisfied and grateful] for LDF representing me. My attorney was professional, honest, and very knowledgeable of his profession. During these tough times my attorney would contact me on a regular basis to see how I was doing. This was obviously not part of his job description, but it kept me at ease and not losing my mind. I'm thankful that I was represented by LDF.