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Federal Civil Rights Lawsuit Against Burbank Police Officers Dismissed

Posted on Wednesday, September 01, 2010 at 03:47PM
Posted by Michael Simidjian

Public safety officers understand and accept that the public holds them to a higher standard of conduct. While officers expect that some members of the public may complain to the agency about their conduct, officers are less prepared when the person complaining to the agency is a fellow officer. It is even more of a surprise when a fellow officer not only complains about other officers, but then files a federal lawsuit against them for alleged misconduct. The law firm of Silver, Hadden, Silver, Wexler & Levine recently dealt with such a dilemma when it successfully defended — with the assistance of the PORAC Legal Defense Fund — Omar Rodriguez of the Burbank Police Department, who had been sued in federal court by a fellow officer from his agency. At the earliest possible stage in the lawsuit, the attorneys for Rodriguez, Ken Yuwiler and Michael Simidjian, filed a motion to dismiss a federal civil rights claim for First Amendment retaliation on the ground that the facts alleged did not support a valid claim. A Ninth Circuit District Court judge agreed, and upheld the right of peace officers to be free from federal civil rights lawsuits for conduct and speech of which another Department employee disapproves.

In that case, a Burbank police officer, represented by a law firm defending him while he was under investigation, tried to avoid responsibility by pointing the finger at other officers. The officer sued five fellow police officers — two lieutenants, two sergeants and a detective — as well as the City of Burbank and the former chief of police, for alleged violations of his rights under federal and state law.

The story begins with a robbery at a popular Burbank bakery in December 2007. A notorious gang had committed the robbery, and Burbank police officers arrested several suspects. Allegations were made about possible misconduct that some of the Burbank police officers may have committed. The Burbank Police Department’s Internal Affairs and Los Angeles Sheriff’s Department eventually began an investigation into whether certain Burbank officers had used excessive force against the suspects. Among the officers that the two agencies interrogated was the plaintiff officer, who had previously denied any such knowledge until his fourth interview with the Sheriff’s Department, whereupon he claimed for the first time that he had personal knowledge that the five officers had engaged in and encouraged physical force in order to coerce statements from the suspects. The plaintiff officer’s most recent statements also contradicted prior statements to Internal Affairs. To account for the earlier statements, the plaintiff claimed that several of the officers had intimidated him into not revealing the alleged misconduct.

The motion to dismiss, filed on behalf of Rodriguez, argued that under federal and state case law, the alleged intimidation that the plaintiff claimed to experience did not constitute retaliation in violation of his First Amendment right to free speech because he spoke pursuant to his duties as a peace officer, and not as a private citizen. Under established constitutional law, a federal civil rights claim for First Amendment retaliation requires that the plaintiff (1) be subjected to an adverse employment action and (2) be engaged in speech that was constitutionally protected because it touched on a matter of public concern, and (3) that the protected expression was a substantial motivating factor for the adverse action. In order to ascertain whether a public employee’s speech is protected, a court will follow a five-step inquiry: (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 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. The burden is on the plaintiff who alleges that he or she has been retaliated against.

In the case before the Honorable Margaret Morrow of the United States District Court, Central District of California, the plaintiff claimed that the five officers had violated his First Amendment right to free speech, but failed to state in the lawsuit exactly what speech had been prohibited or restrained. Nonetheless, the Court assumed that there was speech involved, and then analyzed whether the plaintiff had adequately stated facts to support an allegation of retaliation in violation of his First Amendment rights. As the attorneys for defendant Rodriguez had argued, the District Court found that whatever speech the plaintiff made in regards to the robbery investigation, he did not speak as a private citizen, but rather as a public employee. The Court ruled that the recent Ninth Circuit decision Huppert v. City of Pittsburg, 574 F.3d 696 (9th Cir. 2009), settled the question of whether the plaintiff spoke as a private citizen. In Huppert, the Ninth Circuit Court of Appeal had similarly dismissed the federal civil rights claim for First Amendment retaliation of two police officers who claimed that their agency had retaliated against them because they had reported the alleged corruption of other officers. The Ninth Circuit Court of Appeal found that the officers had spoken about the corruption in the course and scope of their duties in accordance with well-established California state case law. The District Court concluded its analysis by saying that Huppert was a clear and binding precedent that controlled the outcome of this case. While the nature of an official’s job duties are normally a question of fact, the Court noted that both the Ninth Circuit and California courts have held as a matter of law that disclosing incriminating facts is within the duties of a police officer in the State of California. As a consequence, the plaintiff could not state facts supporting a First Amendment civil rights claim against the defendants.

In addition, the District Court also addressed whether the plaintiff had suffered an adverse employment action when the Department placed him on administrative leave. According to the Court, the federal courts that have considered the issue have unanimously held that placement on administrative leave does not constitute an adverse employment action. The Court also noted that the plaintiff had not claimed that any of the defendant police officers had caused the plaintiff to be placed on administrative leave, or had caused him to suffer any other form of adverse employment action. Thus, even if the plaintiff had suffered an adverse employment action, there was no causal link between the defendant police officers and his placement on administrative leave. At the conclusion of its decision, the District Court dismissed the First Amendment civil rights claim and barred the plaintiff from later filing a lawsuit on the same claim. The Court’s ruling applied to all of the defendants, even those who did not make a motion to dismiss. The District Court also elected not to hear the plaintiff’s claims arising under state law, and dismissed those claims with the proviso that the plaintiff may later file them in state court. As the District Court made clear, the case law defends the rights of peace officers across the State of California to be free from First Amendment retaliation claims for conduct related to the duties of peace officers.

Since the time that the District Court handed down its decision, the plaintiff’s counsel has now appealed this decision to the Ninth Circuit Court of Appeal, and has also filed suit in state court. While peace officers can rest assured that

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