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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- David Heller Yolo County DSA
The charges against me, if sustained, would have likely ended my LE career. I was rightfully exonerated on all charges. I was well represented by [My Representative] and thank him for a job well done!!
- Robert Mickschl SAN DIEGO HARBOR P O A
From my initial call to LDF, to my "Thank You" email to (my attorney ) I had the best representation I could have hoped for. The "800" number call receptionists were very professional & understanding. (My Attorney's) office & staff kept me informed & updated. I am forever thankful to LDF & exceptional representation by ( my attorney ) & staff.
- Brendan Tinney UC Berkeley POA
[My representative] has represented me twice now and both times I have been very pleased with his thoroughness with handling my cases. I appreciate all what LDF and [my representative] have done for me.
- Christopher Wells Hollister POA
My rep was great.
- Steven Moorehouse Redding POA
Thank you for your help.
- Rachel Tyner Transit EOA of San Diego
All the LDF representatives were very courteous and attentive with a punctual response to all of my concerns, inquiries and appointment scheduling. My representative was very informative about the legalities and kept in contact with me regularly. He was also very patient and straight forward. I would definitely want to use the LDF again and felt more confident through my proceedings because I had representation!
- Michelle Foerder Pinole PEA
I thank God for the support of LDF and my attorney. I had a letter of intent to be fired and he helped me turn it all around. I still have my job and I'm so grateful.
- 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.
- Eric Olson Escondido POA
You guys did an amazing job! Thank you L.D.F. !
- Thomas E. Lorente III Bart POA
[My representative] did an excellent job! I would highly recommend him to any officer in need of LDF services.
- Kenneth Nelson Plumas Co SA
Good job. Thank you! [My representative] does an outstanding job representing the employees and seems to be very intimidating to the [County Management]. We like it this way!
- Patrick Davis Oakland POA
Very knowledgeable and thorough and would use the rep again.
- Christopher Connally Assn of LEA
To whom it may concern: Let me start by saying how much I appreciate the opportunity to join the PORAC Legal Defense Fund. This is a great benefit for our membership. During the past twelve months I was fortunate to have access to the Legal Defense Fund through MPCA. Earlier this year I was both surprise, and disappointed, when realized that I needed to provide counsel to mediate pending litigation. In accessing the Legal Defense Fund I found your staff to be very professional and reassuring. The staff felt that [my representative]., would be the best ft for the situation. I would like to take the opportunity to express my appreciation for being represented by [Rick Barry]. Not only was he a good fit for the circumstances, at times it seemed as if he was the only attorney out of several involved that really had a grasp on the issues. Again, I would like to thank the PORAC staff, and know that I could not have been better served than by what was provided by [my representative].
- Rachael Van Sloten Oakland POA
LDF is absolutely essential to help make a system that is somewhat broken work more effectively. [My Representative] is excellent and takes a great deal of time to lisen and represent.
- Wendy Morrow Chico Public Safety Association
I had never been through an I.A. in my 21 years. I was scared and ashamed and humiliated. ( My attorney ) was excellent. He helped me through one of the worst times of my life. Had great outcome and I am grateful.
- 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.
- Marshall Henderson Vancouver Police Officers Guild
I have used LDF in 3 OIS's. Each time I have been very well taken care of. I highly recommend [ representative ] and the PORAC system. Well done and thank you.
- William Pryor Statewide University PA
Very helpful program. Helped keep department personnel focused on the issue regardless of their personal issues.
- Malcolm Norrington LA School PA
I am very pleased with LDF and would use and recommend them again and again and again.
- Jorge Garcia San Joaquin Co Corr Officers
No criticism to give. Very well.
- 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!
- Melvarene Hayes LA Airport POA
They were there when I needed them and my whole case was handled on the phone. I met my representative after my case closed and he was at our union meeting when I had the pleasure to meet him and thank him in person.
- Noe Cordero San Diego POA
Thank you for your help. I feel very secure as you assisted me.
- 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.
- James Beckman Miracosta College POA
Highly recommend this program for any LEO!
- Jon Seabron Oceanside POA
[My Representative] was the best and if I ever need to call al lawyer again for anything, I'll be calling her.
- William DeWitt CPPA
Everything was awesome...could not be happier!
- Erik Kusmerz Lyon Co SEA
Amazing job, Thank you.
- Billy Aldridge Chico POA
[My representative] was awesome! He provided an excellent explanation of the process and was very professional. This was my first IA in 11 years of LE and [my representative] did a great job of reassuring me that I had nothing to worry about. Thank you so much for all your help.
- 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.
- Brian Markert Lakewood Police Indp Guild
I feel that I was very well represented by the LDF regarding a fatal officer involved shooting. Both attorneys assigned to assist me - our guild attorney plus a criminal defense attorney - were very aggressive and helpful. Their work was instrumental in helping me to navigate the criminal and internal investigations so that I could return to full duty status.
- Steven Curtiss Shasta Co DSA
This was my first need for LDF support and I was very happy with the level of service. Thank you.
- 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.
- Todd Costa Santa Clara Co DSA
This was my first Internal Affairs investigation, my lawyer walked me through every step and answered all of my questions, without my lawyer's advice, I would have been lost throughout the investigation and a complete disadvantage against my department.
- Gina Romines San Joaquin Co Corr POA
I couldn't have been more satisfied with the representative!
- Katherine Comesana Mountain View POA
Hope to never in a situation again, however, glad to know that LDF is there to help.
- Chris Lyon Tulare Co DSA
Very thorough group of sharp/smart government concerned [attorneys]. They understood what was happening and briefed me on everything. I was very impressed.
- 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.
- Raymond Fisher Colorado State Patrol Assn
I have known for sometime that PORAC would provide the services I needed at the time I needed them. This is a professional competent organization prepared to handle the appropriate legal matters our officers face in today's environment.
- George Fierro El Monte POA
I am a firm believer that LDF serves an essential part in the assistance to protect an officer's POBR & in the integrity of an investigation or complaint. I highly recommend the law office of [My Represenative].
- Robin Gonzalez Yolo Co. DSA
[My representative was] very quick to respond, helpful and professional. Thank you!
- Shaun Luciano LA School PA
LDF assisted by taking a stressful situation and calmed it down by thoroughly explaining the entire process. It was nice to know that I had an ally when I was sure that I was alone.
- Dennis Leach National City POA
[My Representative] is a knowledgeable attorney and I would highly recommend him to anyone needing representation.
- Tigran Topadzhikyan Glendale POA
[My representative] is an excellent attorney. I would use him again. He communicates with his clients and is very competent.
- Steven E. Lopez Santa Maria POA
Keep up the Good Work! Your service was extremely helpful to me. Thank you.
- Ricky L. Hemphill Los Angeles School PA
[My representative] was an excellent lawyer.
- Rich Stepper Montana PPA
[ My representative ] was very knowledgeable regarding dept & legal rules regarding officer involved shooting. Provided good legal advice & was very supportive.
- Byron Kies Santa Barbara Co DSA
Everything was great!
- Scot Hicks Humbolt County DSO
My experience was made much less stressful thanks to the LDF representation.
- Jack Ellis Lompoc POA
An excellent plan. Very valuable to its members.
- Robert Muelberg Denver PPA
I could not have had a better attorney. [My representative ] went way above and beyond his duties. I would not have had a better experience with my representative. I believe that the LDF is the single most important benefit a police officer could have!
- Stacey Bonilla San Mateo County DSA
[My Represenative] is an excellent attorney. He is very professional yet personable and I would definitely use him again. Thank you!
- Miguel Suarez Monterey Co DSA
[My representative] was very knowledgeable and courteous. He knew his stuff, and I couldn't have asked for a better guy to be on my side on this matter. Thanks.
- Toinie Lee Jackson Madera Co DSA
Unfortunately, I have been placed in the position to use LDF several times in my career. Without their valued services, I would not be here to write this. I and my family thank you.