689 F.3d 1094 (9th Cir. 2012), 10-55978, Dahlia v. Rodriguez

Docket Nº:10-55978.
Citation:689 F.3d 1094
Opinion Judge:WARDLAW, Circuit Judge:
Party Name:Angelo DAHLIA, Plaintiff-Appellant, v. Omar RODRIGUEZ, individually and as a Lieutenant of the Burbank Police Department; John Murphy, individually and as a Lieutenant of the Burbank Police Department; Edgar Penaranda, individually and as a Sergeant of the Burbank Police Department; Jose Duran, individually and as a Sergeant of the Burbank Police D
Attorney:Michael A. McGill, Michael A. Morguess, and Russell M. Perry, Lackie, Dammeier & McGill APC, Upland, CA, for plaintiff-appellant Angelo Dahlia. Michael Simidjian and Kenneth C. Yuwiler, Silver, Hadden, Silver, Wexler, & Levine, Santa Monica, CA, for defendant-appellee Omar Rodriguez. Michael Loga...
Judge Panel:Before: KIM McLANE WARDLAW, RICHARD A. PAEZ, and JOHNNIE B. RAWLINSON, Circuit Judges.
Case Date:August 07, 2012
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1094

689 F.3d 1094 (9th Cir. 2012)

Angelo DAHLIA, Plaintiff-Appellant,

v.

Omar RODRIGUEZ, individually and as a Lieutenant of the Burbank Police Department; John Murphy, individually and as a Lieutenant of the Burbank Police Department; Edgar Penaranda, individually and as a Sergeant of the Burbank Police Department; Jose Duran, individually and as a Sergeant of the Burbank Police Department; Chris Canales, individually and as a Detective of the Burbank Police Department, Defendants-Appellees,

and

City of Burbank, a municipal corporation; Tim Stehr, individually, Defendants.

No. 10-55978.

United States Court of Appeals, Ninth Circuit.

August 7, 2012

Submitted May 8, 2012 [*].

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[Copyrighted Material Omitted]

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Michael A. McGill, Michael A. Morguess, and Russell M. Perry, Lackie, Dammeier & McGill APC, Upland, CA, for plaintiff-appellant Angelo Dahlia.

Michael Simidjian and Kenneth C. Yuwiler, Silver, Hadden, Silver, Wexler, & Levine, Santa Monica, CA, for defendant-appellee Omar Rodriguez.

Michael Logan Rains, Harry S. Stern and Lara Cullinane-Smith, Rains, Lucia, Stern PC, Pleasant Hill, CA, for defendant-appellee Edgar Penaranda.

Patricia Kinaga and Arthur B. Walsh, Kinaga Law Firm, Los Angeles, CA, and Gregory Glenn Petersen, Hunt, Ortmann, Nieves, Lubka, Darling & Mah, Inc., Irvine, CA, for defendant-appellee Jose Duran.

Patricia Kinaga and Arthur B. Walsh, Kinaga Law Firm, Los Angeles, CA, and Gregory Glenn Petersen, Hunt, Ortmann, Nieves, Lubka, Darling & Mah, Inc., Irvine, CA, for defendant-appellee Chris Canales.

Carol Ann Humiston, Office of the City Attorney, Burbank, CA, and Richard Terzian, Burke, Williams & Sorensen LLP, Los Angeles, CA, for defendant-appellee City of Burbank.

Eugene Philip Ramirez and Steven Jeff Renick, Manning & Kass, Ellrod, Ramirez, Trester LLP, Los Angeles, CA, for defendant-appellee John Murphy.

Carol Ann Humiston, Office of the City Attorney, Burbank, CA, for defendant Tim Stehr.

Appeal from the United States District Court for the Central District of California, Margaret M. Morrow, District Judge, Presiding. D.C. No. 2:09-cv-08453-MMM-JEM.

Before: KIM McLANE WARDLAW, RICHARD A. PAEZ, and JOHNNIE B. RAWLINSON, Circuit Judges.

OPINION

WARDLAW, Circuit Judge:

I.

Four days after Angelo Dahlia, a detective in the City of Burbank Police Department, disclosed the alleged use of abusive interrogation tactics by his colleagues to the Los Angeles Sheriff's Department, he was placed on administrative leave by Chief of Police Tim Stehr. That decision prompted Dahlia to file a 42 U.S.C. § 1983 suit against Stehr and lieutenants, sergeants, and a detective of the Burbank Police Department, alleging that his placement on administrative leave was unconstitutional retaliation for the exercise of his First Amendment rights. The district court dismissed the suit, concluding that our decision in Huppert v. City of Pittsburg, 574 F.3d 696 (9th Cir.2009), controlled

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Dahlia's case " unless and until overruled" and that, therefore, Dahlia's speech was not protected by the First Amendment. The district court, correctly noting that " the nature of an official's job duties are generally a question of fact," concluded that Huppert held " as a matter of law that disclosure of incriminating facts is within the official duties of a police officer in the State of California." Although we have significant reservations about the validity of the Huppert decision, we must agree with the district court that, under Huppert, Dahlia's disclosure to the Los Angeles Sheriff's Department was made in the course of his official duties, and thus falls outside the protection offered by the First Amendment. We therefore affirm the judgment of the district court.

II.

We take the facts alleged in the complaint as recited by the district court in its June 18, 2010, order granting defendants' motions to dismiss:

On December 28, 2007, an armed take-over robbery occurred at the Portos Bakery in Burbank, California. On the morning of December 29, 2007, Dahlia was called at home, informed of the robbery, and advised to report to the police department to participate in the investigation. Dahlia was the " on-call detective" and assisted Detective Pete Allen, the case agent for the Portos robbery. Sergeant Penaranda, the lead sergeant on the investigation, supervised Dahlia and Allen; Lieutenant Murphy oversaw the investigation.

During the evening of December 29, 2007, several suspects were brought to the station for questioning. At one point during the interviews, Dahlia allegedly observed Lieutenant Rodriguez standing directly in front of and over a suspect who was seated in a chair immediately outside one of the interview rooms. Dahlia asserts that he saw Rodriguez use his left hand to squeeze the suspect's throat, retrieve his handgun with the right hand, place the barrel of the gun directly under the suspect's eye, and say " How does it feel to have a gun in your face motherfucker?" Over the course of the evening, Dahlia purportedly heard noises coming from the interrogation rooms, including yelling and the sound of someone being hit. He also contends he overheard officers discussing abusive interrogation tactics.

After December 29, 2007, the Department's Special Enforcement Detail (" SED" ) and its Vice Detail assumed responsibility for the investigation. Although Dahlia and Detective Allen remained the investigating officers, they were allegedly excluded from participating in interviews. Dahlia asserts that he witnessed more illegal interrogation tactics as the days continued.

Dahlia met with Lieutenant Murphy to report these violations. Dahlia told Murphy that " things were getting out of hand, the interviews were getting too physical, and too many people were doing their own thing and were out of control." Lieutenant Murphy allegedly told Dahlia to " stop his sniveling." When, days later, Dahlia again pleaded with Lieutenant Murphy, Murphy purportedly said that " [h]e didn't want to hear this shit again" and that " [h]e was tired of all the B.S." Dahlia contends that the interrogations and physical beatings continued. [H]e alleges that booking photos evidence the beatings, and asserts that he observed SED team members and Vice detectives put on fingerless gloves with carbon or hard plastic knuckles while preparing to execute a search warrant. Purportedly, the officers would commented [ sic ] openly that they hoped to hit someone using the gloves. At one point, Chief of Police

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Stehr appeared at a briefing and, on being informed that suspects were not in custody, allegedly replied " Well then beat another one until they are all in custody."

In January 2008, Dahlia and Detective Ken Schiffner met with Lieutenant Murphy and pleaded with him to put an end to the illegal tactics. Although allegedly Detective Schiffner stated that " the beatings ha[d] to stop" and Dahlia said that " the madness ha[d] to stop," Lieutenant Murphy did not intervene in the investigation. In February 2008, Dahlia alleges he heard a loud commotion from the interview rooms. On responding, Dahlia purportedly saw Sergeant Gunn standing and looking over the shoulder of Sergeant Penaranda while the latter repeatedly punched a suspect.

In April 2008, officers in the department learned that Internal Affairs intended to investigate unlawful physical abuse of suspects and witnesses. Various individual defendants allegedly threatened or intimidated Dahlia to keep him from revealing his knowledge of the abusive tactics used to interrogate witnesses concerning the Portos robbery. Dahlia contends that Lieutenant Rodriguez and Sergeant Penaranda began visiting him in his office to monitor what he was doing. Sergeant Duran purportedly visited Dahlia's office on a daily basis and asked, " What do you know?" and " What did you hear?" Dahlia asserts that Lieutenant Rodriguez often went out of his way to walk past Dahlia's office so that he could look in and monitor what Dahlia was doing. He contends that Lieutenant Rodriguez's intimidation escalated and that he began to threaten Dahlia not to say anything to Internal Affairs. Dahlia also asserts that Sergeant Penaranda made threatening public comments, referring to officers who blew the whistle as " spineless pussies."

On April 29, 2008, Internal Affairs interviewed Dahlia. Immediately following this interview, Lieutenant Rodriguez purportedly demanded that Dahlia tell him what Internal Affairs had asked and how he had responded. Dahlia told Lieutenant Rodriguez he had not said anything. Dahlia contends that Rodriguez walked past Dahlia's office " constantly" for the remainder of that day. In the days following the Internal Affairs interview, Sergeant Duran also allegedly continued to come to Dahlia's office to monitor him. Dahlia asserts that Sergeant Penaranda asked him about the interview, and that, although he told Sergeant Penaranda he had not said anything, Penaranda threatened Dahlia not to say anything. At one point following the first interview, Detective Canales purportedly told Dahlia to " watch [his] back" and " keep [his] head down."

On May 8, 2008, Dahlia was interviewed by Internal Affairs a second time. Prior to this interview, Lieutenant Rodriguez and Sergeant Penaranda allegedly contacted Dahlia and demanded that he not say anything. Dahlia asserts that, after the interview, he received a telephone call from Lieutenant Rodriguez, who ordered Dahlia to meet him at McCambridge Park in Burbank. Dahlia believed that an incident was occurring and responded to the park. Lieutenant Rodrigez and Sergeant Duran were purportedly waiting for him in the parking lot. Dahlia contends that Rodriguez angrily asked, " What the...

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