574 F.3d 696 (9th Cir. 2009), 06-17362, Huppert v. City of Pittsburg

Docket Nº:06-17362, 07-16600.
Citation:574 F.3d 696
Opinion Judge:TALLMAN, Circuit Judge:
Party Name:Ron HUPPERT; Javier Salgado, Plaintiffs-Appellants, v. CITY OF PITTSBURG; Aaron Baker; William Zbacnik; Michael Barbanica; William Brian Addington; Wayne Derby, Defendants-Appellees. Ron Huppert; Javier Salgado, Plaintiffs-Appellants, v. City of Pittsburg; Aaron Baker; William Zbacnik; Michael Barbanica; William Brian Addington; Wayne Derby, Defend
Attorney:Russell A. Robinson, San Francisco, CA, for the appellants. Joseph M. Quinn, Meyers Nave Riback Silver & Wilson, San Francisco, CA, for the appellees.
Judge Panel:Before: W. FLETCHER and RICHARD C. TALLMAN, Circuit Judges, and WILLIAM O. BERTELSMAN,[*] District Judge. WILLIAM A. FLETCHER, Circuit Judge, dissenting:
Case Date:July 21, 2009
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 696

574 F.3d 696 (9th Cir. 2009)

Ron HUPPERT; Javier Salgado, Plaintiffs-Appellants,

v.

CITY OF PITTSBURG; Aaron Baker; William Zbacnik; Michael Barbanica; William Brian Addington; Wayne Derby, Defendants-Appellees.

Ron Huppert; Javier Salgado, Plaintiffs-Appellants,

v.

City of Pittsburg; Aaron Baker; William Zbacnik; Michael Barbanica; William Brian Addington; Wayne Derby, Defendants-Appellees.

Nos. 06-17362, 07-16600.

United States Court of Appeals, Ninth Circuit.

July 21, 2009

Argued and Submitted July 18, 2008.

Page 697

Russell A. Robinson, San Francisco, CA, for the appellants.

Page 698

Joseph M. Quinn, Meyers Nave Riback Silver & Wilson, San Francisco, CA, for the appellees.

Appeal from the United States District Court for the Northern District of California, James Larson, Magistrate Judge, Presiding. D.C. No. CV-05-01433-JL.

Before: W. FLETCHER and RICHARD C. TALLMAN, Circuit Judges, and WILLIAM O. BERTELSMAN,[*] District Judge.

TALLMAN, Circuit Judge:

We examine the question whether a state police officer's speech, in different forms, is protected under the First Amendment from retaliatory actions taken by that officer's superiors. Plaintiffs Ron Huppert and Javier Salgado appeal the district court's grant of summary judgment in favor of the Appellees, the City of Pittsburg and individual police officers within the Pittsburg Police Department ("PPD"), dismissing their claims under 42 U.S.C. § 1983.

We hold that the speech at issue was given pursuant to Huppert and Salgado's job duties, and therefore affirm the district court's grant of summary judgment. Additionally, Salgado appeals the district court's dismissal on summary judgment of his § 1983 claim brought under the Fourth, Sixth, and Fourteenth Amendments. We affirm the district court on this claim as well. Finally, both Huppert and Salgado appeal the district court's grant of costs to the Appellees solely on the ground that the Appellees failed to timely file their bill of costs. This argument is meritless, so we also affirm the district court's award of fees.

I

Huppert joined the PPD on January 25, 1991, where he worked primarily as a patrol officer and an inspector. In 1995, he was assigned to work a twenty-four hour shift at the Pittsburg Seafood Festival. He requested a shift modification, which was subsequently denied by the PPD. He consulted with a labor attorney, who, unbeknownst to Huppert, contacted the PPD. After Huppert returned to work, Lieutenant Aaron Baker ("Baker")-who is now Chief of Police for the PPD-expressed unhappiness with Huppert and asked Huppert to sign a letter in which he acknowledged (non-existent) sick-leave abuse. When Huppert refused to sign the letter and requested review of all his " sick-leave slips," the matter was " apparently dropped."

In 1996, after being promoted to Inspector, Huppert was assigned to investigate a vehicular manslaughter case. He reported that one of his supervisors, Sergeant Keeler ("Keeler"), a personal friend of Baker, had pursued a carjacking suspect, reaching speeds of up to 100 m.p.h. without using his emergency lights or siren. An innocent third party perished in the resulting crash. In his report about the incident, Huppert discussed his " concerns about Keeler's conduct during the pursuit," and Keeler's use of racial slurs. Now a Commander, Baker charged Huppert with " failure to report and subversive conduct" for not having previously reported this misconduct-which Baker referred to as a " letter of advisement." The charge was later reduced to a " warning."

Between 1997 and 1998, while still employed as a Pittsburg police officer, Huppert

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was selected by the Contra Costa County District Attorney's Office to assist in investigating corruption at the Pittsburg Public Works Yard. Huppert states that " [f]rom that time on, my superiors [at the PPD] treated me with scorn and as an outcast." Then, in 1998 Huppert took the sergeant's exam. He finished first on the written section of the exam, and during the oral portion of the exam, he was questioned " mostly" about his goatee. The following day Baker informed him that he would not be promoted because he had decided to keep his goatee.

Sometime prior to 2001, Huppert began working with the FBI on an investigation into suspected corruption within the PPD. While he does not disclose what assistance he gave to the FBI, he does claim that this work was " outside [his] duties as a member of the PPD." Then, in January 2001, his superior, William Zbacnik, informed Huppert that he would be transferred to " Code Enforcement," also known as the " Strategic Operations Bureau." He was officially transferred in June 2001, and was sent to a building known within the PPD as the " Penal Colony," because " disaffected and/or disfavored officers were assigned there." Huppert's new supervisor, William Hendricks ("Hendricks"), informed him that he had been sent to the " Penal Colony" because Baker wanted Hendricks to find a way to fire him. Huppert's new office at the " Penal Colony" was a " tiny converted bathroom without computer access," and even though he was assigned to investigate gang-related activity, the building was not equipped with the proper secured areas needed for his investigations. During the six-month period between January and June 2001, Huppert was not permitted to work overtime.

Salgado joined the force in 1995 and was, for the majority of his tenure, a detective. In September 2001, he was assigned to the " Strategic Operations Bureau" as Huppert's partner. Baker assigned both of them to investigate suspected corruption at the local City-owned golf course, but told them not to inform Hendricks of this assignment. The investigation " revealed improper conduct by members of the PPD, including gambling, accepting free golf, and possible illegal drug activity." After only two interviews, Baker commanded that Huppert and Salgado cease the investigation. Once they informed Hendricks, he encouraged them to continue investigating and informed Baker that Huppert and Salgado were still looking into corruption at the golf course. Hendricks also informed the FBI that he believed there was a major gambling operation on-going at the golf course.

Huppert claims that while Baker told them not to memorialize their findings, they drafted a report at the conclusion of their inquiry and directed it to Baker and the Pittsburg City Manager. The report " included a finding that defendant Zbacnik had accepted thousands of dollars in gratuities and other illegal perks." However, following the report, Baker took no action against Zbacnik, and instead deemed Zbacnik's actions a " training issue."

In 2002, Huppert and Salgado's office was moved from the " Penal Colony" back to the main Civic Center. They were not initially given an office, and when they finally received one, it was " an old storage room."

Huppert states that Hendricks was " forced out" in December of 2002, and Michael Barbanica ("Barbanica") took his place. In January 2003, Barbanica and defendant William " Brian" Addington ("Addington") falsely accused Huppert and Salgado of engaging in an improper pursuit. Both Huppert and Salgado claim that they were in no way involved in the

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pursuit. Though Barbanica initially claimed that an " anonymous concerned citizen" had reported that Huppert and Salgado were involved, he later admitted that he had lied. He agreed that Zbacnik had been behind his false accusations.

It was normal practice at the PPD that when a supervisor was absent, the next senior officer was normally designated as acting unit supervisor. In late 2003 and early 2004, the practice was changed in the Code Enforcement Unit, where Huppert and Salgado were the next senior officers under their supervisor, Sergeant Reposa. Because of the change in practice, Huppert and Salgado were required to report to the Investigations Unit Supervisor, and were hence prevented from exercising any supervisory authority and earning out-of-class pay.

Salgado claims that in late 2003 and early 2004, Addington began an investigation of Officer Jim Hartley for allegedly falsifying reports. It was obvious to Salgado that " Addington disliked Hartley and was seeking to terminate him." Addington sought to have Salgado claim first-hand knowledge of events which Salgado had not actually witnessed, but Salgado refused to do so.

Huppert and Salgado allege that in February 2004, defendant Wayne Derby ("Derby") became their supervisor. Derby informed them that he was Chief Baker's " ‘ hatchet man’ " and that Baker saw them as " malcontents." He subsequently took away their undercover vehicle and replaced it with an easily recognizable, though unmarked, Ford Taurus. They claim this hindered their work as gang detectives.

Huppert then states that in March 2004, he was subpoenaed to testify before a Contra Costa County grand jury that was " probing corruption in the PPD." Other officers, including Baker, were also subpoenaed to testify, and the subpoenas were received at the PPD for delivery to the individual officers. Huppert's receipt of this subpoena was " recorded in a subpoena log posted in the [PPD] break room." Huppert states that Baker openly discussed his testimony, and told Huppert he knew Huppert had testified before the grand jury as well. Baker also identified officers who he thought would be " bad witnesses" for the department, which Huppert understood to indicate Baker's belief that they were " malcontents."

Sometime after his grand jury testimony, Derby informed Huppert that his position as a gang investigator was being eliminated and he was transferred to a position investigating fraud and forgeries. Addington became his...

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