735 F.3d 1060 (9th Cir. 2013), 10-55978, Dahlia v. Rodriguez

Docket Nº:10-55978.
Citation:735 F.3d 1060
Opinion Judge:PAEZ, Circuit Judge:
Party Name:Angelo DAHLIA, Plaintiff-Appellant, v. Omar RODRIGUEZ, individually and as a Lieutenant of the Burbank Police Department; Edgar Penaranda, individually and as a Sergeant of the Burbank Police Department; City of Burbank, a municipal corporation; John Murphy, individually and as a Lieutenant of the Burbank Police Department, Defendants-Appellees, an
Attorney:Michael A. Morguess (argued), Michael A. McGill, and Russell M. Perry of Lackie, Dammeier & McGill, Upland, CA; Scott Michelman and Scott L. Nelson, Public Citizen Litigation Group, Washington, D.C., for Plaintiff-Appellant Angelo Dahlia. Steven J. Renick (argued) and Eugene P. Ramirez of Manning...
Judge Panel:Before: ALEX KOZINSKI, Chief Judge, and HARRY PREGERSON, STEPHEN REINHARDT, DIARMUID F. O'SCANNLAIN, SUSAN P. GRABER, RICHARD A. PAEZ, MARSHA S. BERZON, JOHNNIE B. RAWLINSON, CONSUELO M. CALLAHAN, CARLOS T. BEA, and MILAN D. SMITH, JR., Circuit Judges. Opinion by Judge PAEZ; Concurrence by Judge ...
Case Date:August 21, 2013
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1060

735 F.3d 1060 (9th Cir. 2013)

Angelo DAHLIA, Plaintiff-Appellant,

v.

Omar RODRIGUEZ, individually and as a Lieutenant of the Burbank Police Department; Edgar Penaranda, individually and as a Sergeant of the Burbank Police Department; City of Burbank, a municipal corporation; John Murphy, individually and as a Lieutenant of the Burbank Police Department, Defendants-Appellees,

and

Tim Stehr, individually, Defendant.

No. 10-55978.

United States Court of Appeals, Ninth Circuit.

August 21, 2013

Argued and Submitted March 20, 2013.

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[Copyrighted Material Omitted]

Page 1062

Michael A. Morguess (argued), Michael A. McGill, and Russell M. Perry of Lackie, Dammeier & McGill, Upland, CA; Scott Michelman and Scott L. Nelson, Public Citizen Litigation Group, Washington, D.C., for Plaintiff-Appellant Angelo Dahlia.

Steven J. Renick (argued) and Eugene P. Ramirez of Manning & Kass, Ellrod, Ramirez, Trester, LLP, Los Angeles, CA, for Defendant-Appellee Jon Murphy.

Ken Yuwiler and Michael Simidjian of Silver, Hadden, Silver, Wexler & Levine, Santa Monica, CA, for Defendant-Appellee Omar Rodriguez.

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

Richard R. Terzian of Burke, Williams & Sorensen, LLP, Los Angeles, CA, for Defendant-Appellee City of Burbank.

Michael P. Stone and Muna Busailah of Riverside Sheriffs' Association Legal Defense Trust, Pasadena, CA, for Amicus Curiae Riverside Sheriffs' Association and Riverside Sheriffs' Association Legal Defense Trust.

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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: ALEX KOZINSKI, Chief Judge, and HARRY PREGERSON, STEPHEN REINHARDT, DIARMUID F. O'SCANNLAIN, SUSAN P. GRABER, RICHARD A. PAEZ, MARSHA S. BERZON, JOHNNIE B. RAWLINSON, CONSUELO M. CALLAHAN, CARLOS T. BEA, and MILAN D. SMITH, JR., Circuit Judges.

Opinion by Judge PAEZ; Concurrence by Judge PREGERSON; Concurrence by Judge O'SCANNLAIN.

OPINION

PAEZ, Circuit Judge:

In this case we address the extent to which a police officer retains First Amendment protection when he discloses his fellow officers' misconduct. Angelo Dahlia, a detective in the Burbank Police Department (" BPD" ), brought this 42 U.S.C. § 1983 First Amendment retaliation suit against the City of Burbank, the Chief of Police and several other police officers. The district court granted the defendants' motions to dismiss the § 1983 cause of action for failure to state a claim. Fed.R.Civ.P. 12(b)(6). The court reasoned that, under Huppert v. City of Pittsburg, 574 F.3d 696 (9th Cir.2009), Dahlia's disclosure to the Los Angeles Sheriff's Department (" LASD" ) of his fellow officers' misconduct was not subject to First Amendment protection because he had a professional duty, as a matter of California case law, to report misconduct. The district court also held that Dahlia's placement on administrative leave did not constitute an " adverse employment action."

We reverse the district court on both grounds and overrule Huppert. We hold that (1) after Garcetti v. Ceballos, 547 U.S. 410, 424, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), courts must make a " practical" inquiry when determining the scope of a government employee's professional duties and that Huppert erred in concluding that California broadly defines police officers' duties as a matter of law for the purpose of First Amendment retaliation analysis; and (2) placement on administrative leave can constitute an adverse employment action. We further hold that, on remand, Dahlia may renew his request for leave to amend his complaint to allege more explicitly which acts are protected by the First Amendment and which acts constitute adverse employment actions.

I. FACTUAL AND PROCEDURAL BACKGROUND

A.1

Following an armed robbery on December 28, 2007, at Porto's Bakery & Café in Burbank, California, Dahlia was assigned to assist in the robbery investigation, which was supervised by defendant Lieutenant Jon Murphy. The day after the robbery, Dahlia observed defendant Lieutenant Omar Rodriguez grab a suspect by the throat with his left hand, retrieve his handgun from its holster with his right hand, and place the barrel of the gun under the suspect's eye, saying, " How does it feel to have a gun in your face motherfucker." Rodriguez noticed Dahlia looking on in disbelief. Later that same evening, Dahlia heard yelling and the sound of

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someone being hit and slapped from inside a room where defendant Sergeant Edgar Penaranda was interviewing another suspect.2

Dahlia was subsequently excluded from participating in suspect interviews, and high-ranking officers within BPD essentially took control of the investigation. Witnesses and suspects continued to be physically assaulted and beaten in BPD's interview rooms, while officers prevented anyone from walking past the rooms or into the audio room. Dahlia met with Murphy to disclose the abuse that he had witnessed. Dahlia told Murphy that the interviews were getting too physical and that Dahlia was having difficulty maintaining order in the investigation. Murphy responded by telling Dahlia to " stop his sniveling."

The physical beatings continued in BPD interview rooms and in the field, evidenced by the booking photos of various suspects. At one point, Chief of Police Stehr appeared at a briefing and, upon learning that not all of the robbery suspects were in custody, said, " Well then beat another one until they are all in custody."

After witnessing the misconduct and abuse, Dahlia approached Murphy a second time and pleaded that he did not have control over the case. Murphy became upset and told Dahlia that he " didn't want to hear this shit again" and that he was " tired of all the B.S." In January 2008, Dahlia and another detective met with Murphy a third time, telling him that " the beatings have to stop" and " the madness ha[s] to stop." Murphy did nothing to respond to these complaints and the abusive tactics continued.

In April 2008 officers learned that BPD's Internal Affairs (" IA" ) unit was planning to investigate the unlawful physical abuse and the other illegal procedures relating to the Porto's robbery investigation. Around the same time, Rodriguez began going out of his way to monitor Dahlia and ultimately threatened him not to say anything to IA. As the IA investigation grew nearer, Rodriguez and Penaranda contacted Dahlia on a daily basis, threatening him to keep quiet. Before the IA investigation commenced, Chief Stehr told an IA lieutenant, " I put you in this position to make it go away."

On April 29, 2008, Dahlia was interviewed for the first time by IA. Immediately after the interview, Rodriguez confronted Dahlia and demanded to know what Dahlia had said during the interview. Dahlia's complaint is silent regarding what he actually said during the IA interview, though he told Rodriguez, out of fear, that he did not say anything to IA. When asked by Penaranda if he had disclosed anything to IA, Dahlia, out of fear for his safety, also told Penaranda that he had not.

On May 8, 2008, IA interviewed Dahlia a second time. After the interview, Dahlia received a call from Rodriguez directing him to report to a park. Dahlia went to the park, believing that there was an incident occurring, but encountered only Rodriguez and another officer there. Rodriguez approached him aggressively and asked, " What the fuck did you tell them?" Rodriguez then asked, almost verbatim, the questions posed by IA and attempted to intimidate Dahlia into revealing his answers. Rodriguez, Penaranda and another officer incessantly harassed, intimidated and threatened Dahlia over the following weeks, to the point where his working conditions were " fully consumed" by the intimidation.

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On May 21, 2008, IA interviewed Dahlia a third time. Immediately after the interview, Rodriguez appeared and aggressively stared directly at Dahlia. The threats and intimidation continued during the subsequent months. Toward the end of 2008, Penaranda and Murphy told Dahlia that a federal investigation into the Porto's robbery might be forthcoming and warned Dahlia not to disclose anything to federal investigators. In January 2009, rumors circulated more widely that the FBI had been contacted about commencing an investigation. At some point, Murphy told Dahlia, " It's on. The Feds are doing an investigation and heads are going to roll. Don't say anything." Penaranda told Dahlia, " It's gonna be bad. You can't say anything." Rodriguez also approached Dahlia and told him " not to talk to the feds." The complaint alleges neither that the FBI actually commenced an investigation nor that Dahlia ever spoke to the FBI.

On April 2, 2009, Rodriguez called Dahlia into his office, told Dahlia to sit down, and closed the door and the blinds. Rodriguez then retrieved his gun from its holster, looked at Dahlia, and placed the gun in a drawer. At one point during the meeting, Rodriguez placed his hands on the desk and told Dahlia, " I'm not a fucking cheese eating rat" and then commented that he was not afraid of being suspended or fired. Rodriguez also leaned forward and said, " Fuck with me and I will put a case on you, and put you in jail. I put all kinds of people in jail, especially anyone who fucks with me!" Dahlia reported this incident to the Burbank Police Officers' Association president, who reported it to the Burbank City Manager.

On May 11, 2009, LASD interviewed Dahlia about the Porto's robbery investigation. During the interview, Dahlia...

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