Roe v. City of San Diego

• Decision Date: 29 January 2004
• Docket Number: No. 02-55164.,02-55164.
• Citation: 356 F.3d 1108
• Parties: John ROE, Plaintiff-Appellant, v. CITY OF SAN DIEGO; San Diego City Police Department; David Bejarano; George Saldamando; Glenn Breitenstein, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

356 F.3d 1108

John ROE, Plaintiff-Appellant, v. CITY OF SAN DIEGO; San Diego City Police Department; David Bejarano; George Saldamando; Glenn Breitenstein, Defendants-Appellees.

No. 02-55164.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 4, 2003.

Filed January 29, 2004.

Michael P. Baranic, Gattey Cooney & Baranic LLP, San Diego, CA, for the Plaintiff-Appellant.

Penny L. Castleman, Deputy City Attorney, San Diego, A, for the Defendants-Appellees.

Appeal from the United States District Court for the Southern District of California; Judith N. Keep, District Judge, Presiding. D.C. No. CV-01-01760-JNK.

Before: D.W. NELSON, WARDLAW and FISHER, Circuit Judges.

Opinion by Judge FISHER; Dissent by Judge WARDLAW.

FISHER, Circuit Judge.

Plaintiff-Appellant John Roe,¹ while a San Diego police officer, videotaped himself stripping off a generic police officer's uniform and engaging in acts of masturbation. He offered these home-made videos for sale on the adults-only section of the popular online auction site eBay, using a fictitious name and a Northern California address. Although the videos did not reveal his connection with the San Diego Police Department (the "Department"), Roe was unmasked when one of his supervisors discovered the videos online and recognized Roe's picture. The Department confronted Roe, who readily admitted making and selling the videos, and eventually fired him. Roe sued the Department, the City of San Diego and his supervisors in federal district court under 42 U.S.C. § 1983, alleging that his off-duty, non-work-related activities were protected by the First Amendment and could not be grounds for terminating his employment. The district court dismissed Roe's claim, concluding that the videos did not address a matter of "public concern," and thus the Department did not violate Roe's constitutional rights by firing him. We conclude that the district court erred, and reverse and remand for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND²

Roe was employed as a City of San Diego police officer for more than seven years. He was fired after the San Diego Police Department discovered that he was selling sexually explicit, non-obscene videos on the adults-only section of eBay. The videos depict Roe alone, with his face partially masked, taking off a generic police uniform and masturbating.

The Department became aware of Roe's activities on eBay through the following sequence of events. In July 2000, Roe's supervisor, Sergeant Robert Dare, searched eBay and located a tan uniform formerly used by the San Diego Police Department. The uniform was offered for sale by a person with the eBay username "Code3stud@aol.com."

Sgt. Dare searched eBay for other items offered for sale by Code3stud and discovered there were such items in eBay's adults-only section. After complying with eBay's access requirements, Sgt. Dare entered the adults-only section and viewed the listings for the items offered by Code3stud. Some of the listings contained Code3stud's picture, and Sgt. Dare recognized the man pictured as Roe.

Sgt. Dare printed out some of the listings and shared them with other supervisors in Roe's chain of command, including Captain Glenn Breitenstein. Capt. Breitenstein contacted the Department's Professional Standards Unit ("PSU"), which began an investigation into Roe's activity on eBay. On July 21, 2000, an undercover PSU investigator, Sergeant Alan Clark, purchased two items from Code3stud: a pair of white men's briefs and a videotape depicting Roe engaging in masturbation. On September 7, Sgt. Clark, again acting undercover, asked Code3stud to produce a custom-made videotape depicting Code3stud issuing another man a citation and then masturbating. Code3stud agreed, produced the video and sold it to Sgt. Clark.

All aspects of the production and sale of the videotapes were conducted while Roe was off-duty and away from his employer's premises and did not involve the use of any City or Department resources. None of the items Roe offered for sale identified Roe as an employee of the City or Department or as being affiliated with them in any way. He never identified himself by name in any sale or listing, and he never identified himself as a San Diego Police officer. He described himself in his eBay seller's profile as living in "Northern California" and being "in the field of law enforcement." He directed all payments to "S. Shatswell," a fictitious name, and utilized a post office box address in Northern California. There is no evidence that Code3stud's real identity was ever discovered by anyone other than Sgt. Dare and the other police officers involved in the investigation.

On October 17, 2000, Sgt. Clark interviewed Roe in person about his sale of videos and clothing on eBay. Roe readily admitted to the off-duty conduct. Sgt. Clark completed his investigation on November 30 and concluded that Roe had violated three Department policies: Policy 9.06 — Unbecoming Conduct, Policy 9.07 — Immoral Conduct, and Policy 5.12 — Outside Employment. On December 20, 2000, Capt. Breitenstein ordered Roe "to cease displaying, manufacturing, distributing or selling any sexually explicit materials or engaging in any similar behaviors, via the internet, U.S. Mail, commercial vendors or distributors, or any other medium available to the public."

Roe removed all items he had listed for sale on eBay but did not change his seller's profile, which described the first two videos he had produced and listed their prices, as well as the price for a custom-made video. On February 13, 2001, Sgt. Dare submitted a report concluding that Roe had violated a fourth Department Policy 9 .04 — Obedience to Lawful Orders — and recommended disciplinary action. After providing Roe with notice and a hearing, the Department terminated Roe's employment on June 29, 2001 for violation of all four Department policies. There is no evidence in the record that Roe's job performance was unsatisfactory; his final performance evaluation, covering January 7 to April 27, 2001, indicates that he met expectations and received one letter of commendation.

On September 28, 2001, Roe brought suit under 42 U.S.C. § 1983, alleging that he was terminated principally for the content of his videos in violation of his constitutional right to freedom of speech.³ Roe sued the City and the Department, as well as Chief of Police David Bejarano, Assistant Chief of Police George Saldamando and Capt. Breitenstein in their official and individual capacities. Roe seeks back pay with interest, compensatory and punitive damages, reinstatement and an injunction prohibiting the City and Department from taking further punitive actions against him.

On November 16, 2001, the defendants moved to dismiss Roe's complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. The district court granted the motion on December 20, 2001 because it determined that Roe's speech did not touch on a matter of "public concern." Roe filed a timely notice of appeal on January 18, 2002, challenging the dismissal of his First Amendment claim.

II. STANDARD OF REVIEW

Dismissals for failure to state a claim under Rule 12(b)(6) are reviewed de novo. Zimmerman v. City of Oakland, 255 F.3d 734, 737 (9th Cir.2001). We must accept as true all well-pleaded allegations of fact in the complaint and construe them in the light most favorable to the plaintiff. Id. "Dismissal for failure to state a claim is appropriate if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. (internal quotation marks omitted). Whether a government employee's speech is a matter of public concern is a question of law that we review de novo. Nunez v. Davis, 169 F.3d 1222, 1226 n. 1 (9th Cir.1999).

III. DISCUSSION

In order to state a prima facie claim against a government employer for violation of the Free Speech Clause of the First Amendment, "an employee must show (1) that he or she engaged in protected speech; (2) that the employer took `adverse employment action'; and (3) that his or her speech was a `substantial or motivating' factor for the adverse employment action." Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir.2003); see also Ulrich v. City & County of San Francisco, 308 F.3d 968, 976 (9th Cir.2002). A public employee's speech is protected only if the employee speaks "as a citizen upon matters of public concern" rather than "as an employee upon matters only of personal interest." Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983).

Once the employee has made a prima facie claim, the burden shifts to the public employer to demonstrate either that, under the balancing test established by Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), the employer's legitimate administrative interests outweigh the employee's First Amendment rights or that, under the mixed motive analysis established by Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), the employer would have reached the same decision even in the absence of the employee's protected conduct. See Bd. of County Comm'rs v. Umbehr, 518 U.S. 668, 675-76, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996); Ulrich, 308 F.3d at 976-77.

Only the first element of the employee's prima facie case — the public concern test — is at issue here. The district court dismissed Roe's case because it ruled that his speech did not touch on a matter of "public concern." Although there is a well-developed constitutional jurisprudence that addresses the meaning of "public concern," that jurisprudence has typically focused on employee speech that takes place at work or that addresses the policies of the government employer. Here, we deal with videos that were made and sold outside the workplace and said nothing about the employer or...